Commonwealth v. KirkCommonwealth v. Kirk
- Reporters:
- , ,
- Before:
- Gillerman
The defendant appeals from his conviction of assault and battery,
The judge could have found the following facts on the Commonwealth’s evidence. On October 5, 1993, about 4:15 p.m., John Burke1 was driving on East Hoyle Street in Norwood when he came upon a car parked perpendicular to the sidewalk in an area where cars are usually parked parallel to the sidewalk. Both doors to the automobile were open. The victim, Kathleen Whalen, was standing on the sidewalk in front of the parked car. She was holding one hand with her other hand. She was crying, very upset, and very dishevelled. Burke stopped his car, and asked Whalen what had happened, in response to which she “just came out — she came out and blurted out the statement that ‘My boyfriend just beat me up.’ ” Burke saw that Whalen had puffy eyes, “she had been crying for some time. Her face was red . . . and she was very frightened.” Whalen told Burke that “her boyfriend had grabbed her wrist, and that she had had a previous injury, and she said he was aware of it, and had hurt her in that manner.” Burke asked her if she wanted to go to the hospital; she declined. Burke then asked her if she would like to go to the police station. She said she would. Whalen, in her own car, followed Burke to the police station. Up to this point, Whalen had not identified her “boyfriend.”
About fifteen minutes had elapsed between the time Burke . first saw Whalen and the time they arrived at the police station. Burke helped Whalen into the police station, gave the police his name and phone number, and left.
Whalen did not testify at the trial. Her statements to Burke were admitted as spontaneous exclamations. The judge ruled, however, that Whalen’s statements to Officer Eysie at the police station did not come within that exception. Over the defendant’s objection, Whalen’s complaint, her supporting affidavit, and the 209A order, including the return of service upon the defendant, were admitted in evidence as one exhibit. The Commonwealth’s stated purpose in offering the documents was to provide the element missing from Whalen’s statement to Burke — the identity of her “boyfriend.” Without competent evidence identifying the defendant as Whalen’s boyfriend, the Commonwealth could not prevail.
Discussion. The judge did not abuse his discretion in ruling that Burke’s testimony of what Whalen said to him was admissible as a spontaneous exclamation. When Burke came upon Whalen, the positioning of her car and her physical ap
Whalen’s statement to Burke, however, did not identify the defendant, or anyone else, as her boyfriend. Thus, the pivotal question at the trial was whether Whalen’s affidavit and the 209A order were competent to identify the defendant as the “boyfriend” referred to in Whalen’s statement to Burke.
Whalen’s affidavit, which asserts that the defendant physically abused her, is hearsay, and the Commonwealth concedes this to be so. To the extent that the affidavit contains assertions that are merely cumulative of Whalen’s statements to Burke, which were admissible, the point is of no consequence. What is of consequence is whether those statements in Whalen’s affidavit which identify the defendant as her assailant, and the ensuing service of the 209A order upon him, provided competent evidence for the judge to find that the defendant was Whalen’s boyfriend. We think not.
The Commonwealth argues, without citation to authority, that the judge could properly consider the affidavit and 209A order for the limited purpose of showing that the defendant was the “boyfriend” who assaulted her. Given that the identity of the “boyfriend” was the live issue at the trial, and that evidence that the defendant was the boyfriend was essential for his conviction, the use of the affidavit to resolve the identification issue would mean that the affidavit would be used, impermissibly, for the truth of the matter asserted therein.
The Commonwealth also argues that the 209A order was admissible by way of judicial notice (which the judge may have taken, although the record is not entirely clear), as well
Nor is the official records exception to the hearsay rule available to the Commonwealth. The identification of the defendant in the 209A order is merely a replication of Whalen’s assertion in her affidavit that the defendant was the abuser, and it cannot be regarded as a record of a “primary fact made by a public officer in the performance of official duty,” as required by the rule. See Liacos, Massachusetts Evidence § 8.13.1, at 504.
Similarly, Officer Eysie’s testimony regarding the service of the 209A order upon the defendant, while not hearsay, provides no help to the Commonwealth. Without the admissibility of the antecedent information in Whalen’s affidavit and the accompanying complaint in which Whalen names the defendant as her abuser, evidence of the service of the 209A order upon the defendant is relevant only upon the theory that the judge would be entitled to infér that service was made upon the defendant because Whalen had identified him in her affidavit and complaint. In a remarkably similar case,
To sum up, the Commonwealth fails to refer us to any authority, and we know of none, which would permit the judge to consider the prior identification evidence appearing only in Whalen’s extrajudicial affidavit, absent any supporting testimony, as competent evidence of the required identification of Whalen’s “boyfriend.”5 While it is true that an extrajudicial
Here, the defendant was identified — and later charged and convicted — as Whalen’s assailant solely by means of an extrajudicial identification made by an available witness who did not “confront” the defendant, did not testify, and was not subject to cross-examination7 The defendant’s conviction was in violation of the Sixth Amendment to the United States Constitution. See California v. Green, 399 U.S. 149, 193 (1970) (“This Court has already explicitly held in Douglas v. Alabama, 380 U.S. 415, 419-420 [1965], that the Confrontation Clause forbids the substantive use at trial of a prior extrajudicial statement, when the declarant . . . [is] unwilling to testify about the events with which his prior statement dealt .... [The defendant’s] inability to cross-examine [the absent declarant] as to the alleged confession plainly denied him the right of cross-examination secured by the Confrontation Clause”). The conviction also violated art. 12 of the Massachusetts Declaration of Rights. See Commonwealth v. Bergstrom, 402 Mass. 534, 544 (1988) (“[W]e
We recognize that the right to confront witnesses is not absolute. See White v. Illinois, 502 U.S. 346, 357 (1992) (confrontation clause of the Sixth Amendment not violated where the proffered hearsay comes within a firmly rooted exception to the hearsay rule, such as spontaneous exclamations); Commonwealth v. Crawford, 417 Mass. 358, 364 (1994). But here, the Commonwealth presented no evidence that Whalen was unavailable, see note 7, supra, see also Commonwealth v. Bohannon, 385 Mass. 733, 744 (1982); Commonwealth v. Colin C., 419 Mass. 54, 63 (1994) (“[t]he prosecution bears the burden of showing the necessity for admitting the out-of-court statement by establishing the declarant’s unavailability to testify during the trial”), and, as we have seen, no “firmly rooted” exception to the hearsay rule is available as to the critical identification issue. In these circumstances, the defendant’s right of confrontation is paramount. See Commonwealth v. Bergstrom, 402 Mass, at 545-546; Opinion of the Justices, 406 Mass. 1201, 1209-1210 (1989); Commonwealth v. Colin C., 419 Mass, at 63. See also Commonwealth v. Bohannon, 385 Mass, at 741 (confrontation right extends beyond contours of the hearsay rule).
The defendant, without justification, was deprived of the right of cross-examination of Whalen and the right to a face-to-face confrontation. The judgment must be reversed and the verdict set aside. However, the conclusion we reach does
So ordered.
Notes
The testimony of John Burke was introduced during a hearing on the defendant’s motion in limine held immediately prior to trial. The purpose of the hearing was to determine whether certain statements made by the victim came within the spontaneous exclamation exception to the hearsay rule. At the conclusion of the hearing on the motion, the judge ruled that the statements were admissible. The transcript of the hearing on the motion, by agreement, was subsequently incorporated into the trial record.
The 209A order required the defendant not to abuse the plaintiff, not to contact the plaintiff in any manner, and to stay at least 200 yards away from her.
While the judge, or this court, may take judicial notice of the records and files of the court in the same case or in ancillary proceedings, see Liacos, Massachusetts Evidence § 2.8.1, at 43, such records ordinarily may not be used for substantive purposes. Thus, in Brookline v. Goldstein, 388 Mass. 443 (1983), the Supreme Judicial Court considered the pleadings in other cases which had been submitted to the judge “solely to discover the nature of the claims asserted” (emphasis added). Id. at 447 n.5.
Matters of fact, to be noticed, will generally be limited to what is “indisputably true.” Liacos, Massachusetts Evidence § 2.6, at 39. We are not aware of any case where a trial judge or an appellate court has taken judicial notice of an unsupported extrajudicial statement which provides the critical evidence of the identification of the defendant in a criminal case. Cases cited by the Commonwealth, Andrews, petitioner, 368 Mass. 468, 476 (1975), and Matter of Welansky, 319 Mass. 205, 210 (1946), are not apposite.
In Mitchell v. Hoke, a police detective testified that the absent declarant picked someone out of a pretrial lineup, and that the defendant was arrested as a result.
“See Commonwealth v. Weichell, 390 Mass. 62, 71-72 (1983) (“Under the Federal Rules of Evidence and the Proposed Massachusetts Rules of Evidence [1980], a statement of prior identification is not hearsay if made by a witness who testifies at trial and is subject to cross-examination concerning it.
The issue of the confrontation clause was not raised below, and we requested additional briefs because of the importance of the issue. See Commonwealth v. Trowbridge, 36 Mass. App. Ct. 734, 746 & n.11, S.C., 418 Mass. 1107 (1994).
The Commonwealth’s brief is careful to describe Whalen as an “absent” witness, not an “unavailable” witness. The trial transcript is silent as to the circumstances of Whalen’s absence from the trial. However, at the sentencing hearing following the trial, the Commonwealth represented to the court that Whalen “was summonsed today” by the Commonwealth, and that she did not appear in court. There is no reference in the record to a return of service. The Commonwealth also represented to the court that Whalen “did leave a message ... to the effect that she didn’t want to go forward with the case.”