47 Mass. App. Ct. 679 | Mass. App. Ct. | 1999
The main contention of the defendant in her appeal from convictions of breaking and entering a dwelling in the daytime with intent to commit a felony (G. L. c. 266, § 18),
We give a condensed account of the case, which will provide background for the defendant’s points of law. It was about 5:00 a.m. on January 9, 1995, at the Leisure Towers in Lynn, a fifteen-story senior citizen apartment complex. Jeremiah Paquette, who was eighty-four years of age, had just heard a knock on his door. Someone asked to be let inside. Paquette refused. Some time later, about 5:45 a.m., Paquette left his apartment to empty a wastebasket. A person emerged from “out of nowhere,” grabbed him by the throat and forced him back into his apartment. He was beaten and robbed. The intruder fled, having relieved Paquette of his wallet.
The government’s version of what happened came primarily through the testimony of Christopher Foglietta, a Lynn police officer, who testified that later that morning, between 8:00 a.m. and 9:00 a.m., after he received a report of the robbery, he went to Leisure Towers to interview Paquette. That meeting took place in the complex’s management office. Paquette, seated in a chair, was bleeding from a laceration about his ear. There were contusions to his ear, hand and nose. In response to Foglietta’s inquiries, Paquette gave a detailed explanation of the events just described. In addition to his wallet, containing one hundred dollars, and a magnetic card to gain access to the building, twenty-five dollars was taken from his apartment. Paquette described the person as a man who claimed to be a woman, more than five feet ten inches tall, about twenty-three to twenty-five years of age, either white or Hispanic, with long brown hair. As he spoke to the officers, he sobbed and appeared to be in pain. A quick search of the common areas of the building after the interview concluded was not productive.
Four days later, on January 13, 1995, police turned up information from two other residents of the complex, who
The defendant did not testify at trial. Her version of the events was brought out on cross-examination of a government witness, Kelly Hart, who testified that on January 9, 1995, the defendant was living in an apartment just below Hart in the city of Gloucester. Hart, on direct examination, had the defendant arrive inside her place on the morning of the robbery garbed in dirty clothes and with blood stains on her jacket. When Hart picked up the clothes that the defendant shed in favor of a clean change, Paquette’s wallet fell out of the defendant’s jacket. Defense counsel’s cross-examination elicited some equivocal information from which the jury might infer that Hart was the robber. In her closing argument, defense counsel suggested that Hart tried to fix the blame on the defendant after the police contacted her.
When a motion in limine is denied and counsel fails to object during trial when evidence originally sought to be excluded is introduced, appellate review is based upon a “substantial miscarriage of justice” standard. See Commonwealth v. Gabbidon, 398 Mass, at 7; Commonwealth v. Napolitano, 42 Mass. App. Ct. 549, 551-552 (1997).
As we review the evidence, the government’s proof of the elements of all the charges rests on Paquette’s statement to Foglietta. Absent that proof, the government conceded (at oral argument) that the defendant was entitled to a required finding of not guilty on the charges. Paquette’s statement to the police contained the only proof that the defendant took Paquette’s wallet from his person using force and violence or by putting him in fear. G. L. c. 265, § 19. See Commonwealth v. Johnson, 379 Mass. 177, 181 (1979). It also was the only evidence of the general appearance of his attacker. His death required the government to introduce the Foglietta testimony to salvage the case.
After conducting a voir dire hearing, the judge concluded that
As to the concept of excited utterance or spontaneous exclamation, the pertinent authorities have already been collected in Liacos, Massachusetts Evidence § 8.16 (6th ed. 1994). See 6 Wigmore, Evidence § 1750 (Chadboum rev. ed. 1976).
In two decisions issued in 1994, the Supreme Judicial Court
In the Grant case, the defendant, after an argument over a drug dealing enterprise, murdered the victim while he lay in bed with his girlfriend. The defendant also shot the girlfriend, who “played dead” and survived the attack. The court, in upholding the admission of a police officer’s testimony quoting the girlfriend’s responses to questions posed by the officers made about one hour after the shooting, restated the rule as set out in Commonwealth v. McLaughlin, 364 Mass, at 222, underscoring that the utterance must have been made “before there ha[d] been time to contrive and misrepresent.”
What we learn from the Crawford and Grant cases is that hearsay may be admitted so long as “there has not been time for the exciting influence to lose its sway and to be dissipated.” Commonwealth v. Grant, 418 Mass, at 81, quoting from Rocco v. Boston-Leader, Inc., 340 Mass, at 197.
In Commonwealth v. Burnett, 417 Mass. 740 (1994), the defendant was convicted of motor vehicle homicide after an early morning accident with another motorist whose passenger died as a result of the collision. Blood samples taken from the drivers showed the defendant to have a blood alcohol reading above the presumptive limit, while the other driver’s reading was below the limit. The trial judge, after a voir dire hearing, excluded statements attributed to the driver of the other car, overheard by his mother at the hospital, one and one-half hours after the accident, that he had drunk a couple of beers, “some hard stuff,” and had “smoked shorts.” Id. at 743. In holding that the trial judge did not err in the exercise of his discretion by excluding the statements, the court distinguished the situation from that posed in Commonwealth v. Brown, 413 Mass. 693 (1992), because there the child-declarant was still receiving treatment at the time the statement was made and was under the stress of extreme trauma and pain. In contrast, the adult declarant in Burnett appeared calm, and had already received medical treatment. Commonwealth v. Burnett, supra at 744.
Some of the cases just cited were reviewed in Commonwealth v. DiMonte, 427 Mass. 233, 236-241 (1998), where a facsimile message sent by a victim at least eight and one-half hours after the alleged assault occurred did not, in the circumstances, have the indicia of reliability required for its admission as an excited utterance, and certain other statements made by the victim to
The question in this case is close. We would be inclined to rule on this record, particularly in light of Foglietta’s responses to the judge’s close questioning at the voir dire hearing, that Paquette’s statements fail to satisfy the “spontaneity” test under the pertinent authorities. Contrast Commonwealth v. Nunes, 430 Mass. 1, 3-4 (1999); Commonwealth v. Napolitano, 42 Mass. App. Ct. at 553. The judge, recognizing the need to elicit the context of Foglietta’s statements, painstakingly asked him about Paquette’s demeanor at the time of the meeting.
In most cases, we afford the trial judge much leeway in determining whether the proffered statements meet the criteria of admissibility for the excited utterance exception to the hearsay rule. Commonwealth v. Fuller, 399 Mass, at 682. And we recognize that the fact that answers were given in response to police questions does not, in itself, necessarily preclude their being admissible as excited utterances. In this case, however, other than evidence that Paquette was “sobbing” and in pain during the interview, there were no signs that he was under the influence of the exciting event. His statement was not “made during a rapidly developing incident in circumstances reasonably negating premeditation.” Commonwealth v. Clary, 388 Mass. 583, 589 (1983).
The ultimate question is whether reversal is required. We conclude in these circumstances that it is. Unlike cases where the accused had an opportunity to cross-examine the declarantvictim about out-of-court statements erroneously admitted as excited utterances, see Commonwealth v. Whelton, 428 Mass. 24, 27 (1998); Commonwealth v. Napolitano, 42 Mass. App. Ct. at 555-556, there was no such opportunity here. Since the Commonwealth could not carry its burden of proof without Paquette’s statements, their erroneous admission in evidence created a substantial risk of a miscarriage of justice.
In view of our disposition of this claim, we need not address the defendant’s remaining claims of error, nor her claim of ineffective assistance of counsel. The defendant’s convictions on all the charges (including the assault and battery charge placed on file, see Commonwealth v. Souza, 42 Mass. App. Ct. 186, 187 n.1, 193 [1997]), are reversed.
Judgments reversed.
Verdicts set aside.
Judgments shall enter for the defendant.
The defendant was indicted for breaking and entering in the nighttime with intent to commit a felony (c. 266, § 14), but was convicted of the lesser-included offense pursuant to c. 266, § 18.
The assault and battery conviction was filed with the defendant’s consent.
Proposed Mass.R.Evid. 803(2) is consistent with recent Massachusetts case law, as is Fed.R.Evid. 803(2). The Federal rule provides, “A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” is an exception to the hearsay rule. See Liacos, supra at 519.
Some commentators disparage the conventional wisdom regarding these tests. See Milich, Hearsay Antinomies: The Case for Abolishing the Rule and Starting Over, 71 Or. L. Rev. 723 (1992); Schum, Hearsay from a Layperson, 14 Cardozo L. Rev. 1 (1992). The most critical look at the spontaneous utterance doctrine is presented by Professor Goldman, Distorted Vision: Spontaneous Exclamations as a “Firmly Rooted” Exception to the Hearsay Rule, 23
“[The rule] is based on the experience that, under certain-external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties ... so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is
Foglietta described the declarant’s demeanor in the following manner: Paquette was “sobbing, consistent with someone who was in pain.” He was “sobbing versus excited. He wasn’t jumping around. ... He was not physically excited. He was more or less in pain. He was upset. He wasn’t jumping around. That’s why I used sobbing. You know, he was in trauma, in pain, and he was talking calmly.” On cross-examination, Foglietta agreed that his “primary observation” was that Paquette was “in physical pain.” However, throughout the interview, Paquette’s “demeanor was calm.” On cross-examination before the jury, Foglietta agreed that Paquette had been able to “speak clearly and in a lucid manner.”
We have not found, nor have we been referred to, any cases in which statements of an adult elicited at a police interview have been admitted as an excited utterance after a longer period than found in this case. Special considerations found in children’s statements, see Commonwealth v. Brown, 413 Mass, at 695-696, do not pertain here.