The defendant, Peter Hurley, was convicted by a Superior Court jury of assault and battery of Rose Bovio, but acquitted of assault and battery of Arthur Kluge. Because both Bovio and Kluge had died before trial, the Commonwealth offered in evidence portions of prior recorded testimony of Bovio at the defendant’s pretrial detention hearing, as well as excited utterances made to the police by Bovio and Kluge. Represented by new counsel on appeal, the defendant argues (1) error in the admission of the prior recorded testimony of Bovio; (2) error in the admission of the statements Bovio made to police officers; (3) error in the denial of his motion for a required finding of not guilty at the close of the Commonwealth’s case based on the failure of any witness to identify him at trial; (4) that he was denied effеctive assistance of trial counsel; and (5) that the cumulative effect of errors created a substantial risk of a miscarriage of justice. We transferred this case here on our own motion to address the defendant’s claims that the admission of Bovio’s prior recorded testimony and statements to police, in light of Crawford v. Washington,
Background. According to the evidence at trial, viewed in the light most favorable to the Commonwealth, at around 12:30 a.m. on March 22, 2005,
Bovio was visibly upset, walking around with her hands flailing, and repeatedly stating, “I can’t take it anymore.” She told Officer Christman that she had been sitting in a chair against a wall in the living room of Kluge’s apartment when her boy friend, the defendant, “had just beat on her,” hitting her in the head and face. She stated that, when Kluge tried to stop him, the defendant stopped hitting her and turned to Kluge, striking him in the head hard enough to knock him out of his wheelchair and “so hard that he made an indentation in the wall.” Bovio pointed to the chair in which she had been sitting, as well as to what Officer Christman observed was a “clear indentation” in the wall. Throughout this approximately two-minute conversation with Officer Christman, Bovio was crying, excited, and upset.
While Officer Colella went to look for the defendant, Officer Christman retrieved and started to fix Kluge’s wheelchair, so that Kluge could sit in it. As he was doing so, Kluge suddenly fell forward, face first, to the ground, and did not appear to be breathing. Officer Christman radioed for an ambulance and for assistance from Officer Colella. Officer Colella responded seconds later with a defibrillator. Emergency medical technicians (EMTs) arrived within minutes, relieving the officers of their attempt to resuscitate Kluge.
Bovio had started screaming when she saw Kluge slump over, so Officer Christman moved her to a place in Kluge’s apartment where she could not see the efforts to resuscitate Kluge and told her that she needed to calm down. About five to ten minutes
As Officer Christman was finishing his conversation with Bovio, he was informed that Kluge was breathing on his own, but was unconscious. Another officer told Officer Christman that the defendant had returned to the building. The defendant appeared, saw Kluge, and asked what had happened to him. The defendant smelled of alcohol. His eyes were bloodshot and glassy, and he wаs unsteady on his feet. Officer Christman and other officers then arrested the defendant.
Officer Christman went back to Kluge’s apartment and spoke a third time with Bovio. She was still upset and appeared to be intoxicated. Her eyes were bloodshot and glassy, and she smelled of alcohol. At around 1:30 a.m., Officer Christman asked Bovio if she could write a statement detailing what had occurred. Bovio was reluctant until Officer Christman informed her that the defendant was in custody. Bovio stated that she had never gone to court before but would be going this time. In Officer Christman’s presence, she wrote by hand a short, legible state
Detective Katrina Mazzie of the Massachusetts Statе Police interviewed Bovio in Bovio’s home later that morning at around 10 a.m. and spoke with her for about twenty to thirty minutes. The detective wrote down what Bovio said verbatim but did not testify as to the contents of Bovio' s statement.
On March 28, 2005, Bovio was scheduled to testify at the defendant’s pretrial detention hearing, but called in sick. Detective Mazzie went to Bovio’s house, and knocked on the door. Bovio did not answer the door for five minutes. When she did, she explained that she had just awakened. The detective drove Bovio to the court house, and accompanied her while Bovio met with the prosecutor and victim witness advocate before she testified in court. While Bovio appeared to be nervous, she did not appear to be physically impaired, confused, or under the influence of any drug or alcоhol.
Most of Bovio’s testimony from the pretrial detention hearing was admitted in evidence and read to the jury.
Bovio testified that she had dated the defendant, whom she identified in the court room at the pretrial detention hearing, for about one and one-half years. The defendant and Kluge, whom she knew as “Teddy,” were acquaintances and “drinking buddies.” At about 7 p.m. on the night of the incident, Bovio and the defendant started drinking beer at his mother’s house, then left to walk downtown to buy vodka and mm. They arrived at Kluge’s apart
Bovio recalled that she had told the police officers who responded that night what had occurred, but was drunk and did not know what she had said. She recalled that she also had written a statement thаt night and that it was correct.
When the questioning at the pretrial detention hearing turned to Bovio’s relationship with the defendant prior to the incident and his becoming violent when he drank, the judge gave the jury a limiting instruction concerning prior bad acts of the defendant. Bovio stated that she previously had seen the defendant become violent after drinking and that his conduct was “different every time.” “We usually fight,” she said. She said that he had hit her before on “[t]oo many” occasions. The defendant had punched her in the lip and in the head, and had left scars on her, including a scar on her mouth that the defendant inflicted “last summer.” Bovio stated that, on three occasions, she had gone to the police after fights with the defendant. She contacted the police, she explained, because she gets “scared of him when he drinks.” Bovio testified that she was afraid of the defendant, and that she told the defendant that she was tired of getting hit. She stated that the defendant “promised he wasn’t going to do it again [and] he did it again, and here I am.” She said she decided to testify because she did not want to “wait around until [the defendant] gets drunk and kills me.”
During her cross-examination at the pretrial detention hearing, Bovio stated that she had one drink before she drove to the
During her redirect testimony, Bovio had no recollection of telling the police that the defendant struck Kluge so hard that he knocked him out of his wheelchair, or of seeing the defendant strike Kluge. She stated that she was tmthful with police, but added, “I black out when I drink hard liquor.”
The defendant did not testify at trial. He called three witnesses, two of whom testified that the wall in Kluge’s apartment had been damaged in November, 2004, at a Thanksgiving dinner in a scuffle that did not involve the defendant. One of the witnesses also stated that Bovio would become aggressive when she drank rum and would slap and push the defendant. The defendant’s mother testified that she observed Bovio to have been intoxicated, agitated, and “absolutely out of her mind” in the hours preceding the incident. The defendant also offered in evidence five transcripts of telephone conversations he had with Bovio while he was in jail after the incident, in which they discussed the incident and the circumstances surrounding Bovio’s testimony at the pretrial detention hearing.
Discussion. 1. Admission of prior recorded testimony. The defendant argues that the admission of Bovio’s testimony from the pretrial detention hearing violated his right to confront the witnesses against him, as guaranteed by the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights.
The defendant does not dispute that Bovio, because she was dead, was unavailable to testify at trial. Nor does the defendant dispute that Bovio was under oath at the prior judicial proceeding, that he was represented by counsel at the prior proceeding, and that a suitable judicial record — a certified transcript signed by a court reporter — was prepared of the prior proceeding. Rather, the defendant contends that the pretrial detention hear
In a pretrial detention hearing under G. L. c. 276, § 58A, a judge must detain a defendant prior to trial if the Commonwealth meets its burden of proving by clear and convincing evidence that the defendant is so dangerous “that no conditions of release will reasonably assure the safety of any other person or the community.”
“[T]o decide whether the defendant’s motive to cross-examine at the earlier proceeding is similar to his motive to cross-examine at thе current trial, ‘[t]he issue on which the testimony was introduced in the [earlier] proceeding as well as the purpose for which the testimony was offered must be substantially similar to the issue and purpose for which the same testimony is offered at the subsequent. . . trial.’ ” Commonwealth v. Roberio, supra at 253, quoting Commonwealth v. Ortiz,
The defendant argues that the focus of defense counsel’s cross-examination of Bovio at the dangerousness hearing was to establish her intoxication so he could argue that, if an altercation did in fact occur, it resulted from a “drunken stupor of all parties present and not because the defendant is a dangerous person.” The defendant’s characterization of the focus of Bovio’s cross-examination at the pretrial detention hеaring is not supported by the record. Bovio was cross-examined about when she had contacted the defendant before the incident; when she had driven to his house; her going to his garage to drink; whether she had been drinking earlier; whether she was on any medication then or at the dangerousness hearing; whether she had anything to eat while drinking before the incident; how much and what she and the defendant each drank; when they went into the defendant’s home and what they did therein; the purchase of liquor before the incident; how she and the defendant came to join Kluge; what they did at Kluge’s apartment before the incident; Kluge’s medical problems; the defendant’s leaving Kluge’s apartment to get more alcohol; whether she got mad at the defendant, screamed at him, said she hated him, and suspected him of being with another woman beсause he did not promptly return to Kluge’s apartment; the defendant’s and her return to Kluge’s apartment; whether the defendant had obtained protective orders against her; the circumstances and accuracy of her first written statement to police; whether she was intoxicated; and her driving home after the incident. Thus, contrary to the defendant’s contention, Bovio’s credibility was examined in many ways, including her drunkenness and possible bias against the defendant.
A defendant is not entitled under the confrontation clause to a cross-examination that is “effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer,
2. Admission of excited utterances. On the first day of trial, in ruling on the Commonwealth’s motion in limine, the judge, over the defendant’s objection, ruled that the oral statements made by Bovio after the police arrived were admissible as excited utterances. The Commonwealth did not seek to admit in evidence the statement Bovio wrote by hand later that morning or her oral statement made the next morning to Detective Mazzie.
In a criminal case where the Commonwealth seeks to admit in evidence a hearsay statement, that is, an out-of-court statement offered to prove the truth of the matter asserted, it must jump two
As to the first hurdle, under our common-law rules of evidence, a hearsay statement may be admissible as an excited utterance if “(1) there is an оccurrence 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.’ ” Commonwealth v. Santiago,
As to the second hurdle, testimonial out-of-court statements made by a witness who did not testify at trial are not admissible against the defendant in a criminal case under the confrontation clause of the Sixth Amendment unless the declarant was unavailable to testify, and thе defendant “had a prior opportunity for cross-examination.” Crawford, supra at 54. Here, where the declarant had died before trial, the Commonwealth, to surmount this hurdle, must establish either (1) that the statement was non-testimonial or, (2) if it was testimonial, that the defendant had an adequate prior opportunity to cross-examine the declarant.
The Supreme Court declared in Davis v. Washington,
“Statements are nontestimonial when made in the course of police interrogation under circumstances objectivelyindicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially rеlevant to later criminal prosecution.” 11
We have said that statements elicited through questioning by law enforcement agents “are per se testimonial and therefore implicate the confrontation clause” unless the questioning is intended to “secure a volatile scene or establish the need for or provide medical care.” Commonwealth v. Gonsalves, supra at 9.
The Commonwealth concedes that the statements made by Bovio in her two conversations with police at the scene of the incident — the statements made when the police first arrived and those made shortly after Kluge had collapsed — were testimonial. When the police arrived, there was no ongoing emergency, because the defendant had left. The primary purpose of the police questioning of Bovio was to find out what had happened in thе past, potentially for further criminal investigation and prosecution. Kluge’s collapse certainly triggered a medical emergency, but the questioning of Bovio that followed his collapse was not designed to assist the police or EMTs in responding to this emergency.
In California v. Green,
An excited utterance need not be inconsistent with the witness’s testimony to be admissible; its admissibility under the common-law rules of evidence is unrelated to whether it is consistent or inconsistent with the declarant’s pretrial or trial testimony. Yet, just as with a prior inconsistent statement, the confrontation clause requires that the defendant have an opportunity on cross-examination to question the declarant who made a testimonial excited utterance as to the truth value of his prior statement.
Here, the excited utterances were offered in evidence at thе pretrial detention hearing through the testimony of Officer Christ-man, who testified after Bovio had completed her testimony. Defense counsel did not cross-examine Bovio at the prior hear
We conclude that the defendant’s right of confrontation under the Sixth Amendment was violated by the admission of the portions of Bovio’s excited utterances that spoke of these four facts, because the defendant did not have an adequate opportunity to cross-examine Bovio with respect to their accuracy and truth. However, we also conclude that this constitutional error was harmless beyond a reasonable doubt in the circumstances of this case. The first two facts focused on the alleged assault of Kluge, for which the defendant was found not guilty. The third fact was inconsequential where Bovio’s prior recorded testimony made clear that, on the night of the incident, the defendant had repeatedly hit her in the head. The fourth fact was also incon
3. Motion to dismiss based on lack of identification. After the Commonwealth rested its case, defense counsel moved to dismiss all charges on the ground that the defendant had not been identified on the record. Recollecting that Officer Christman had gestured at, and nodded to, the defendant during his testimony (which the record does not reflect), the judgé, over the defendant’s objection, allowed the Commonwealth to recall Officer Christman to establish that the person in the court room sitting next to the defense attorney was the defendant. We reject the defendant’s contention that the judge erred in permitting the Commonwealth to reopen its case to offer this minimal identification evidence.
We recognize that, under Mass. R. Crim. P. 25 (a),
Here, the judge did not abuse her discretion by allowing the Commonwealth to reopen its case to identify the defendant. The defendant had yet to offer evidence in his defense; he suffered no unfair prejudice; and Officer Christman’s failure to identify the defendant during his earlier testimony arose from “mere inadvertence” by the Commonwealth. See Commonwealth v. Cote, supra.
4. Ineffective assistance of trial counsel. The defendant claims his trial counsel provided ineffective assistance by offering in evidence the transcripts of five recorded telephone conversations the defendant had with Bovio while he was in jail prior to trial. On the first day of trial, defense counsel told the judge that he sought admission of thеse conversations to impeach statements Bovio had made to police and at the defendant’s
Claims of ineffective assistance of trial counsel in noncapital cases are reviewed to see whether “there has been serious incompetency, inefficiency, or inattention of counsel . . . falling measurably below that which might be expected from an ordinary fallible lawyer,” and, if that is found, whether that failure “deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian,
The defendant did not bring this claim as part of a motion for a new trial but raises it for the first time on direct appeal. We strongly disfavor this approach. See Commonwealth v. Zinser,
Because Bovio had died prior to trial, the admission of the conversations she had with the defendant while he was in jail served to impeach statements she had made to police, as well as her testimony at the defendant’s pretrial detention hearing. For instance, Bovio stated in the transcribed conversations that she told police that the defendant did not hit Kluge and that she knew that the defendаnt was “in [here] for something [he] didn’t do.” Even if one of Bovio’s statements to the defendant, asking him if he would be “cool” when released, suggested that she feared him, there was already evidence from the Commonwealth that she feared him. The content of the conversations served to provide multiple defenses for the defendant without his having to testify. In the conversations, the defendant was able to put before the jury, among other things, his own statements that he did not hit either victim; that Bovio was pressured by law enforcement to testify at his pretrial detention hearing; that Bovio’s testimony at the pretrial detention hearing consisted of lies and was made under duress, as she had been hung over and on medication when she testified; that Bovio’s original accounts to police were not true because she lied when she was drunk; that Bovio’s recantation was credible; and that the police had it in for the defendant and Bovio was just a pawn.
These transcripts were certainly a two-edged sword, because the jury could have inferred from them that the defendant was trying to influence Bovio’s testimony and pressure her to recant her earlier testimony that the defendant had struck her. While in hindsight it may have been a poor strategic decision to have offered these transcripts, we do not conclude indisputably on the trial record that trial counsel’s decision to offer these transcripts in evidence was manifestly unreasonable.
5. What we have stated obviates the need to address the defendant’s final argument concerning the cumulative effect of several errors.
Judgment affirmed.
Notes
There were some minor variances in testimony concerning the date on
At the defendant’s pretrial detention hearing, Bovio testified that the defendant’s mother’s house was one-quarter of one mile from Kluge’s apartment.
The handwritten statement was not offered in evidence, and the balance of the statement was not read to the jury.
Nor was the detective’s verbatim report of the statement offered in evidence.
A redacted transcript of the hearing was also admitted in evidence. Large portions of Bovio’s testimony from her direct and redirect examination and all of her testimony from her cross-examination and recross-examination were heard by the jury and made available for them to read.
The jury learned that Bovio and Kluge had died prior to trial through testimony and the admission of death certificates, which had the cause of death redacted.
The Sixth Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment to the United States Constitution,
The Commonwealth may move for pretrial detention, based on dangerousness, under G. L. c. 276, § 58A, only if the defendant is charged with a felony that has as an element the use, attempted use, or threatened use of physical force against another; a felony that by its nature involves a substantial risk that physical force against another may be used; an offense involving domestic abuse; or a violation of a protective order, including protective orders obtained under G. L. c. 209A. Id. at § 58A (1).
We acknowledge that there may be circumstances in which a defense counsel’s motive to cross-examine a declarant at a pretrial detention hearing may differ from her motive to cross-examine at trial, such as where the defense counsel did not challenge the declarant’s accuracy or credibility at cross-examination in the prior hearing and focused solely on challenging the defendant’s dangerousness. We, therefore, declare no general rule that a witness’s prior testimony at a pretrial detention hearing is always admissible at trial if that witness becomes unavailable. We simply conclude that, in the facts and circumstances of this case, the defendant’s right of confrontation was protected because he had an adequate opportunity to cross-examine Bovio at the prior hearing.
As noted earlier, the Commonwealth, during the redirect examination of Officer Christman, did have him read the beginning of Bovio’s written statement, “I saw [the defendant] hit him then I really didn’t see anything else. They were both gone, or I hid.” Because the defendant did not оbject to the reading of these two sentences, and because they implicated the defendant only in the assault and battery of Kluge, for which he was acquitted, we do not consider the admissibility of these sentences in this decision.
The word “interrogation” “must be understood expansively to mean all law enforcement questioning related to the investigation or prosecution of a crime." Commonwealth v. Gonsalves,
The admission of a testimonial statement without an adequate prior opportunity to cross-examine the declarant, however, violates the confrontation clause only if the statement is hearsay, that is, offered to prove the truth of the matter asserted. See Crawford v. Washington, supra at 59-60 & n.9, citing Tennessee v. Street,
The defendant, even if he had learned of the excited utterances through discovery, was not obliged to offer them in evidence (or otherwise inform the judge of their incriminating content) during the cross-examination of Bovio in order to preserve his opportunity to cross-examine Bovio as to her prior out-of-court statements. Nor was the defendant obliged to call Bovio back to the stand after the excited utterances had been admitted in order to have the opportunity to cross-examine her regarding the out-of-court statements. See Melendez-Diaz v. Massachusetts,
We suggest that, in the future, when the Commonwealth in a criminal case seeks to admit the excited utterance of a declarant who is not a witness at trial or has completed his testimony at trial, the judge should conduct a careful voir dire, evidentiary if needed, before admitting the excited utterance in evidence.
The standard we set here for reopening the evidence in the Commonwealth’s case is narrower than the standard articulated in Commonwealth v. Wood,
The prosecutor, in the presence of the defendant, told the judge that the transcripts contained information indicating that the defendant was in jail because of the charges for which he was being tried, and that the Commonwealth was investigating the possibility of charging the defendant with manslaughter as a result of Kluge’s death.