Commonwealth v. McGannCommonwealth v. McGann
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Assault and Battery. Assault and Battery by Means of a Dangerous Weapon. Constitutional Law, Confrontation of witnesses, Fair trial. Evidence, Hearsay, Spontaneous utterance, Medical record, Cross-examination. Practice, Criminal, Hearsay, Confrontation of witnesses, Fair trial, Restitution. Fair Trial. Due Process of Law, Fair trial. Self-Defense. Restitution.
Complaint received and sworn to in the Orange Division of the District Court Department on January 17, 2017.
A pretrial motion to redact medical records was heard by Paul H. Smyth, J., and the case was tried before David S. Ross, J.
The Supreme Judicial Court granted an application for direct appellate review.
Cara M. Cheyette for the defendant.
Nicholas Shareef Atallah, Assistant District Attorney (Thomas H. Townsend, Assistant District Attorney, also present) for the Commonwealth.
CYPHER, J. This is an appeal by the defendant, Skye A. McGann, from her convictions of assault and battery on a family or household member and assault by means of a dangerous weapon. We granted her application for direct appellate review. Before trial, the victim, the defendant‘s then boyfriend, invoked his privilege against self-incrimination under the
Background. We recite the facts as the jury could have found them, reserving certain details for later discussion.
1. The incident. The defendant and the victim lived together in an apartment (apartment). At some time during the night of January 15, 2017, the defendant and the victim got into an argument.1 Around 11 P.M., the victim called his mother (first telephone call). The victim‘s mother testified2 that the victim told her, “[The defendant] just punched me in both of my eyes. I can barely see.” The victim‘s mother described the victim‘s tone of voice as “screaming and crying.” She testified that when she told the victim to call the police, he responded, “I‘m gonna call the cops.”3 The victim‘s mother called the police several times after speaking with her son.
At some point after the first telephone call, the defendant left the apartment and drove to her father‘s house. The victim‘s mother testified that after the first telephone call, she called the defendant to address the victim‘s accusations. The victim‘s mother testified that when she told the defendant, “[The victim] told me you beat him up pretty bad and you stole his car,” the defendant responded, “You should see what he did to me.” The defendant spent about an hour at her father‘s house and then returned to the apartment. After the defendant returned to the apartment, the police arrived at the apartment, spoke to the victim, and left thereafter.
At 1:30 A.M. on January 16, the victim again called his mother (second telephone call). The victim‘s mother testified that during this telephone call, the victim was “screaming,” “[h]e was crying,” and his tone of voice was “hysterical.” She testified that the victim said to her, “She tried to kill me. She pulled out a knife.” A neighbor living in the apartment next to the victim and defendant
As the victim concluded the second telephone call with his mother, the police arrived. When Officer Corey Brown and Sergeant Randall Stange of the Athol police department arrived at the scene, they observed blood on the back of the victim‘s head. Brown testified that he noticed blood around the victim‘s mouth and nose and bite marks on the victim‘s arm and shoulder, and that the victim‘s demeanor was “excited,” his voice was “loud,” and he was “very boisterous with his hands.” Both officers testified that they did not observe injuries or marks on the defendant. The victim was transported to the hospital by ambulance.
As detailed infra, the defendant testified at trial, raising the issue of self-defense.
2. Evidentiary holdings. As relevant to the defendant‘s appeal, the judge accepted the victim‘s assertion of Fifth Amendment privilege, allowed the Commonwealth‘s motion to admit statements the victim made to his mother on the telephone as nontestimonial spontaneous utterances, and denied the defendant‘s motion to redact certain statements in the victim‘s medical records.
3. The restitution order. After the verdicts, the prosecutor requested, inter alia, that the defendant pay restitution. At a later restitution hearing, the judge ordered the defendant to pay restitution to the victim‘s mother.5
The defendant appealed from her convictions and from the restitution order, and we granted her application for direct appellate review.
Discussion. 1. Admissibility of the victim‘s statements to his mother.6 We first address whether the trial judge properly admitted the statements the victim made over the telephone to his mother. The defendant argues that the victim‘s statements were testimonial because he knew or should have known that his
evidence.”7 The Commonwealth contends that the victim‘s statements to his mother were not testimonial because they were all made to resolve ongoing medical emergencies, and that “the limitations required by Commonwealth v. King did not violate the defendant‘s due process rights, as the court still evaluated the statements themselves for reliability.” For the reasons that follow, we hold that the judge properly admitted the statements the victim made to his mother as excited utterances.
a. Confrontation clause. The first issue is whether the confrontation clause barred the victim‘s out-of-court statements to his mother from being admitted. In a criminal case, to be admissible as a spontaneous utterance, the out-of-court statement made by a declarant who does not testify at trial must satisfy the confrontation clause and must be admissible pursuant to the rules of evidence.8 See Commonwealth v. Beatrice, 460
Mass. 255, 258 (2011). The confrontation clause bars the admission of testimonial hearsay by a declarant who does not appear at trial, unless the declarant is unavailable to testify as a matter of law and the defendant had an earlier opportunity to cross-examine him or her. See id., citing Crawford v. Washington, 541 U.S. 36, 53-54 (2004). “Testimonial statements are those made with the primary purpose of ‘creating an out-of-court substitute for trial testimony‘”
Commonwealth v. Simon, 456 Mass. 280, 296 (2010).
The judge conducted a voir dire, before the trial, during which the victim‘s mother and a police officer who responded to the scene testified. See Hurley, 455 Mass. at 68 n.14. The victim‘s mother testified during the voir dire that at approximately 11 P.M. on January 15, the victim called her and said that the defendant punched him in both his eyes, that he could “barely see,” and that the defendant stole his car. The victim‘s mother further testified that during this telephone call, the victim was “very, very, very upset,” and that he was “crying,” “screaming,” and “hysterical.” She said she told him to call the police and that he responded, “I will.” There is no evidence to suggest that the victim called the police, and the defendant does not argue that he did so.
The victim called his mother a second time, again conveying the defendant‘s actions to his mother. The victim‘s mother testified during voir dire that the victim called her around 1:30 A.M. on January 16 and told her, “[The defendant] pulled out a knife. She‘s tried to kill me.” She testified that during this second telephone call, the victim was “screaming,” and his tone of voice was “hysterical” and “much worse” than the tone of his voice on the first telephone call. The judge ruled that the statements were nontestimonial, explaining that they “were not made for the purpose of aiding an investigation of prosecution of a crime. That might have been so had he called the police, but he was calling his mother; it sounds as if in despair.”
The statements the victim made to his mother during the second telephone call present us with an additional layer of information: that after his first call to his mother and before his second call to his mother, the police responded to the apartment and spoke with the victim. The defendant argues that the victim knew or should have known that his second telephone call to his mother would result in the police again responding to his apartment, and that it is immaterial that the police arrived on scene during the second telephone call in response to a 911 call from a neighbor.10 However, as mentioned supra, there is no evidence in the record to suggest that, during the first call, the victim‘s mother told the victim that she was planning to contact the police. The record reflects that on the second telephone call, the victim was “screaming” and “hysterical,” and that when the police arrived as he finished the second telephone call, a police officer11 observed the victim to be “covered in blood,” and “pretty frantic.” Therefore, the victim‘s state of being, combined with the record being void of an indication that he was aware his mother was doing anything other than just listening to his concerns regarding the defendant, leads us to hold that the statements in the second telephone call also were not testimonial. See Beatrice, 460 Mass. at 258-259. As such, the victim‘s statements to his mother were nontestimonial and the
b. Due process. The second issue regarding the admissibility of the victim‘s statements to his mother is whether, as the defendant argues, her due process right to a fair trial was violated because the judge did not consider all the evidence in determining the admissibility of the victim‘s out-of-court statements to his mother. While a judge has “broad discretion” to determine whether a statement meets the foundational criteria of the spontaneous utterance exception, Simon, 456 Mass. at 296, we held in King that the judge does not have discretion to exclude a spontaneous utterance that meets the foundational criteria “on the ground that, in light of other evidence, the statement no longer appears reliable.” King, 436 Mass. at 256-257 (if judge had independent discretion to determine reliability of evidence in light of other evidence, this would “effectively require the judge to hear the entirety of the other proposed trial evidence and would have the judge usurp the fact finder‘s function“). Underlying our holding in King was the principle that spontaneous utterances are, by their very nature, considered reliable and that the reliability of a spontaneous utterance goes to its weight, not its admissibility. Id. Although decided before Crawford, 541 U.S. 36, King does not conflict with Crawford‘s holding, or with our Commonwealth‘s subsequent case law. As such, we decline the defendant‘s invitation to revisit King. As the admission of the victim‘s statements as spontaneous utterances complied with evidentiary standards, the admission of the victim‘s out-of-court statements did not violate the defendant‘s due process right to a fair trial.
2. Admissibility of the statement contained in the victim‘s medical record. The next issue is whether the motion judge properly admitted the following statement contained in the victim‘s medical record: “repeatedly beat him about the head/face and bit him several times in arms and also came after him with steak knife.”12 The defendant contends that the statement in the victim‘s medical record in which he “describ[es the] defendant as the assailant on a charge involving only a threat of injury was inadmissible, testimonial hearsay.”13 The Commonwealth argues that the judge properly admitted the statement as a statement related to the victim‘s medical history because it related to possible
Certified medical records “may be admitted by the court, in its discretion, as evidence in the courts of the commonwealth so far as such records relate to the treatment and medical history of such cases . . . but nothing therein contained shall be admissible as evidence which has reference to the question of liability.”
Here, the motion judge ruled that the statement was admissible, nontestimonial hearsay. The victim‘s mother read the statement during her testimony at trial, and the prosecutor read the statement during closing argument.
The first part of the statement, “repeatedly beat him about the head/face and bit him several times in arms,” falls within the medical record exception because it relates to a potential cause of the victim‘s “multiple bite marks,” “bloodied appearance,” and contusion. See
3. Prosecutor‘s cross-examination of the defendant. We next examine whether a line of questioning by the prosecutor during
“A cross-examiner may ask a question that implies the truth of a proposition if she has a basis in fact for asking the question and is prepared to disclose that reason to the judge.” Commonwealth v. Christian, 430 Mass. 552, 561 (2000), overruled on another ground by Commonwealth v. Paulding, 438 Mass. 1 (2002). “There must be a reasonable and good-faith basis for questions asked on cross-examination.”
In Commonwealth v. Peck, 86 Mass. App. Ct. 34, 39 (2014), the Appeals Court stated that “the requirement noted in [Commonwealth v. White, 367 Mass. 280, 285 (1975)] (that the examiner must have a good faith basis and proper foundation for cross-examination) is simply another way of saying that the examiner must have a reasonable belief that the facts implied by the questions could be established by admissible evidence.” The court in Peck went on to hold that although the prosecutor communicated to the judge that he had a report in which the defendant‘s boyfriend told the police and the insurance fraud bureau that the defendant had confessed to her involvement in insurance fraud, the prosecutor‘s cross-examination questions to the defendant about that conversation were improper. See Peck, supra at 37-40. The court held that the questioning was improper because the boyfriend was not present to testify and therefore “the prosecutor‘s questions had the effect of informing the jury of the contents of out-of-court statements allegedly made by the
The defendant in the present case did not object to the questioning, and we therefore review for a substantial risk of a miscarriage of justice. See Commonwealth v. Carroll, 439 Mass. 547, 554 (2003). This standard requires us to determine “if we have a serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass. 72 (2005), quoting Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). In making this determination, “[w]e consider the strength of the Commonwealth‘s case, the nature of the error, the significance of the error in the context of the trial, and the possibility that the absence of an objection was the result of a reasonable tactical decision.” Azar, supra.
During cross-examination of the defendant, the prosecutor asked the defendant a series of questions15 relating to her
grabbing the knife, kicking the victim, throwing him into a mirror, and
The Commonwealth stated in its brief that the questions were based on the prosecutor‘s notes from a conversation he had with the victim and the victim‘s mother, which were provided to defense counsel before trial. However, because the victim did not testify at trial, the victim‘s statements to the prosecutor during that conversation were not going to be admitted as evidence during the trial. Because the prosecutor based his questions during this line of cross-examination on his conversation with the victim, he did have a good faith basis to ask the questions, even though he was not going to offer substantive evidence of the statements. See White, 367 Mass. at 284. However, although the prosecutor had a good faith basis for asking the defendant the questions, he should have ceased the line of questioning in the face of the defendant‘s consistent denials. See Christian, 430 Mass. at 562.
The improper line of questioning did not create a substantial risk of a miscarriage of justice because it was brief, the line of
curative instruction before the trial, explaining that “what a lawyer says is not evidence unless a witness agrees to it,” and in his final instruction he explained that “[a] question by itself is not evidence, the evidence is the witness[‘s] answer taken in context.” See Commonwealth v. Imbert, 479 Mass. 575, 587 (2018) (juries expected to follow judge‘s instructions). For the foregoing reasons, although the line of questions was improper, it did not create a substantial risk of a miscarriage of justice.16 See Carroll, 439 Mass. at 554.
4. Defendant‘s self-defense claim.
The next issue is whether the evidence presented by the Commonwealth was sufficient to allow a reasonable jury to conclude that the defendant did not act in self-defense. Where the defendant has sufficiently raised the issue of self-defense, the Commonwealth carries the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. Commonwealth v. King, 460 Mass. 80, 83 (2011). The defendant argues that “there was insufficient evidence to prove beyond a reasonable doubt the elements of the charged crimes because the Commonwealth failed to present any evidence that [the defendant] did not act in self-defense” as “there was no competent evidence from which the jury could draw the necessary
To satisfy its burden of proving beyond a reasonable doubt that the defendant did not act in self-defense, the Commonwealth must establish that at least one of the following factors did not exist: (1) the defendant had a reasonable concern for her personal safety; (2) she used all reasonable means to avoid physical combat; and (3) “the degree of force used was reasonable in the circumstances, with proportionality being the touchstone for assessing reasonableness.” King, 460 Mass. at 83, quoting Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 368-369 (2004). Where deadly force is at issue, the defendant must have had an actual and reasonable belief of “imminent danger of death or serious bodily harm, from which [she] could save [herself] only by using deadly force” (citation omitted). Commonwealth v. Pike, 428 Mass. 393, 396 (1998).
After the Commonwealth rested its case, the defendant testified in her defense and, in doing so, raised the issue of self-defense; the judge then instructed the jury on self-defense. The defendant testified that the victim held her down on the floor, took and broke her vaporizer, and “smashed into the mirror,”17 which caused glass shards from the mirror to fall on the defendant and the victim. She testified that while the victim pinned her to the ground, she could not move anything other than her head, so she bit him and used her “head to hit his nose, or face, or face in general to get off of [her],” and that she was “pretty sure” this gave him a nosebleed. She also testified that the victim “took [her] phone and smashed it across the bathroom sink so [she] couldn‘t call anyone.” She further testified that she went into the bathroom and locked the door, that the victim forced his way in, and that she then left the bathroom and grabbed a knife from the kitchen, which the victim took from her.
The jury were free to reject the defendant‘s testimony and instead credit the evidence presented by the Commonwealth. See Commonwealth v. Fluker, 377 Mass. 123, 128-129 (1979). The Commonwealth presented sufficient evidence, which included the victim‘s injuries, his statements he made over the telephone to his mother, and the police officers’ testimony that they did not observe any marks or other injuries on the defendant during her arrest, to allow a reasonable jury to conclude that the defendant did not act in self-defense. The jury here could have also credited the various statements made over the course of the incident, including the victim‘s statement, “She tried to kill me. She pulled out a knife,” and the neighbors’ testimony that the defendant stated, “I‘m going to kill you, and I want you dead” and “I‘m gonna F‘ing kill you.” Given the evidence presented through the Commonwealth‘s witnesses, as well as the evidence of the victim‘s injuries, the Commonwealth presented sufficient evidence for the jury to find beyond a reasonable doubt that the defendant did not act in self-defense. See King, 460 Mass. at 83.
5. Defendant‘s due process right to a fair trial.
Moreover, contrary to the defendant‘s argument, the defendant received a fair trial. The defendant argues that the “preserved and unpreserved errors combined to deny [her] a fair trial.” As discussed supra, the one error during the trial was the improper cross-examination, which although error, did not create a substantial risk of a miscarriage of justice.
6. Third-party restitution.
The final issue is whether a trial judge may order a defendant to pay restitution to a third party and, if so, whether the order in the present case satisfied the causation requirement. The defendant argues that she “should be reimbursed the restitution she was ordered to pay to the complainant‘s mother, a nonvictim, for losses the mother voluntarily incurred.” She further argues that even if a trial judge may order a defendant to pay restitution to a third party, the order here was improper because the victim‘s mother‘s economic loss was not sufficiently connected to the defendant‘s offense. The Commonwealth counters
The power of a judge to order restitution in a criminal case “derives from the judge‘s power to order conditions of probation under
In the present case, after a hearing on the issue of restitution, the judge ordered the defendant to pay $232.37 in restitution to the victim‘s mother.18 As the victim‘s mother testified at the restitution hearing, the $232.37 covered her payment for her son‘s two psychiatrist visits that took place after the incident, the removal of the staples from his head that were placed there in the hospital after the incident, and his prescription medicine connected to the present incident. The mother provided receipts, which were entered in evidence, documenting these expenses. However, the differentiating factor from a more typical restitution order is that here the judge ordered the defendant to pay restitution to the victim‘s mother, rather than to the victim himself. Although a third party (who is not also a victim of the crime, or a family member of a minor victim) may not have the “right” to
While the defendant disputes the validity of a restitution order to a third party, given the circumstances of this case, with the defendant causing the victim to need medical care and the victim‘s mother paying for that care, it was within the judge‘s discretion to order restitution to the victim‘s mother because it was “primarily designed to meet . . . the goals of sentencing and of probation.” Commonwealth v. Power, 420 Mass. 410, 414 (1995), cert. denied, 516 U.S. 1042 (1996). We note that third-party restitution may not always be appropriate, but in the facts of the present case, where the mother paid for her son‘s medically related care, incurred as a direct result of the defendant‘s actions, the judge properly ordered it. See McIntyre, 436 Mass. at 833 (“restitution best serves penal objectives when it bears a proper relationship to the crime of conviction, both in kind and proportion“).
Moreover, the restitution order met the causation requirement in the present case. See Id. at 834-835, quoting Glaubius v. State, 688 So. 2d 913, 915 (Fla. 1997) (scope of restitution limited to “loss or damage [that] is causally connected to the offense and bears a significant relationship to the offense“). See also Denehy, 466 Mass. at 739 (test adopted in McIntyre “is a broad test that requires a holistic assessment of the facts surrounding the crime, not merely those facts establishing the elements of the crime“). Where the victim‘s mother presented evidence of expenses she paid for the victim‘s medical care as a direct result of the defendant‘s actions, the expenses incurred were “causally connected to the offense and [bore] a significant relationship to the offense.” McIntyre, 436 Mass. at 834-835, quoting Glaubius, 688 So. 2d at 915. In addition, even though the victim was not a minor, it also was reasonably foreseeable that a mother would pay her twenty-four year old son‘s medical and medically related expenses. For these reasons, the restitution order was proper. See McIntyre, supra at 836.
So ordered.
LOWY, J. (concurring).
I agree with the court that the defendant‘s convictions should be affirmed and that aspects of the
Notes
Q.: “And that wound was actually caused by the tip of the knife that you grabbed, correct?”
A.: “No.”
. . .
Q.: “Before you left -- you in fact had kicked [the victim] and hit him in the face before you took his car and left, correct?”
A.: “No.”
Q.: “And then, when you returned and you -- the argument resumed, you yanked [the victim] out of bed, and you threw him up against that mirror, correct?”
A.: “No. I never even --”
Q.: “And in fact --”
A.: “-- touched him.”
Q.: “-- he then ran into the bathroom with your phone after you threw him into the mirror, correct?”
A.: “No.”
Q.: “And then --”
A.: “Are you trying to throw me off?”
Q.: “And then you broke down the door while he was in there with your phone, correct?”
A.: “Wait, what?”
Q.: “You broke down the door while he was in there with your phone, correct?”
A.: “No, I can‘t even break down a door.”
Q.: “And then, when you grabbed the knife, he put his right arm up, didn‘t he?”
A.: “No.”