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Opinions of
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Commonwealth v. Moquette, 439 Mass. 697 (2003)
Suffolk. March 3, 2003. - July 10, 2003.
Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.
The case was tried before R. Peter Anderson, J.
Rami M. Vanegas, Assistant District Attorney, for the Commonwealth.
Astrid H. afKlinteberg for the defendant.
The following submitted briefs for amici curiae:
Nona E. Walker, Committee for Public Counsel Services, for Committee for Public
Counsel Services.
William M. Bennett, District Attorney, Jane Davidson Montori & Katherine E.
McMahon, Assistant District Attorneys, for the District Attorney for the
Hampden District & others.
SOSMAN, J.
The defendant was convicted of assault and
battery by means of a dangerous weapon (two counts), assault and battery, and
violation of a protective order, in connection with an incident of domestic
violence against his girl friend and her two children. On appeal, the Appeals
Court reversed the conviction with respect to one
count of assault and battery by means of a dangerous weapon, and affirmed the
remaining convictions. Commonwealth v. Moquette, 53
Mass. App. Ct. 615, 625 (2002). In reversing that
one conviction, the Appeals Court
held that the evidence was insufficient because the Commonwealth's case relied
entirely on spontaneous utterances made at the scene, later recanted by the
declarants at trial, without any corroboration that the striking of the child
victim described in the spontaneous utterances had occurred. Id.
at 619-623. We granted the Commonwealth's application for further appellate
review, and we now affirm the conviction.
1. Facts. At approximately 4:30 A.M.
on August 17, 1997,
security officers at a housing project in the Roxbury section of Boston
observed a woman and a boy run out of one of the apartment buildings. The
woman, Rosaline Motero, was clad only in her nightgown. She appeared
"really shaken up, scared." The boy, Motero's nine year old son,
Joel, was crying. He told the officers that his "father"[1]
had hit his mother, himself, and his sister and that they had fled the
apartment in fear. The defendant ran outside a few minutes later, knife in
hand, and was quickly apprehended.
After the defendant was handcuffed, Joel further explained to the security
officers that his mother had been fighting with the defendant, that the
defendant had hit her twice, and that the defendant had beaten him and his
sister with a belt. He said that his sister's hand had been struck with the
belt buckle. Joel showed the officer a cut on his right hand, saying that that
cut had been caused by the defendant's hitting him with the belt buckle.[2]
The officers also observed red marks on Motero's face and neck.
The security officers, one of the Boston
police officers who had been called to the scene, Motero, and Joel went inside
the apartment, where they found Motero's eleven year old daughter Aneri. Aneri
reported to the officers that she and Joel had attempted to intercede in a
fight between her mother and the defendant. The defendant had taken his belt off
and struck both of them with it. She gave the officers the belt in question,
and displayed marks on her hand and leg that she claimed were caused by the
blows with the belt. She stated that Joel had also been hit on the hand and on
the leg. During this exchange, Aneri was visibly upset. While Joel had been
upset at the time of his initial encounter with the security officers, he
became "very withdrawn" and "sullen" when they were back in
the apartment, declined to answer questions, and then claimed that he had not
been hurt.
An ambulance was summoned, and both of the children were seen by an emergency
medical technician (EMT). Aneri explained that she had been injured when the
defendant struck her with the belt, and the EMT observed injuries to her left thumb
and right thigh. The EMT also examined Joel. Joel told the EMT that he had been
struck on his right hand and right lower leg. When Motero was examined, she
complained of shoulder and neck pain, but the EMT saw "[n]o visible signs
of trauma." These observations and complaints were noted on the ambulance
report forms, with a separate form for the examination of each victim. Motero
rejected the EMT's offer to have herself and her children transported to the
hospital for further evaluation.
At trial, Motero testified that the incident had occurred during a dispute with
the defendant about playing loud music that had awoken the children. When the
children came out of the bedroom, Motero testified that the defendant "got
the belt and he hit them so that they would go to sleep." On
cross-examination, she testified three more times to the same effect, i.e.,
that the defendant had hit "them" with the belt. On redirect
examination, she testified that the defendant only "threw" the belt,
but again testified that the belt had been thrown "at them," i.e., at
both children. Finally, on recross-examination, she was asked, "[H]e never
hit Joel with the belt though, did he?," to which she responded,
"No." She also testified that Joel had not been examined by the EMT.
She further testified that, during the incident, she had tried to telephone
security personnel. The defendant had grabbed the telephone from her, striking
her unintentionally as he did so, but not hurting her.
At trial, Joel testified that he had come out of his room in response to the
loud music and had found his mother and the defendant arguing. When asked
whether anything happened to him that night, he responded, "No." He
did testify that Aneri had been injured with a belt buckle, but did not say how
her injuries had occurred or who had inflicted them. On brief
cross-examination, defense counsel asked, "[The defendant] never hit you
with a belt that night, did he?" Joel gave "[n]o verbal
response," and was excused from the witness stand.
Aneri testified that she had not seen the defendant hit anyone other than
herself. When asked specifically whether she remembered anyone else being hit,
she gave "[n]o verbal response." On cross-examination, defense
counsel asked, "[The defendant] never hit Joel with the belt, did
he?" Again, Aneri gave no response. She similarly failed to answer many
other questions put to her.
The defendant testified that he had not struck either child, but had only
"snapped" the belt in their direction because they had not obeyed his
instruction to return to bed. He claimed that Joel returned to bed, but that
Aneri was still up. He then "snapped" the belt at her two more times,
not intending to hit her with it, but she grabbed at the belt with her left
hand on the last snap. He claimed that Aneri's leg injury was due to a fall
earlier that night.
2. Discussion. The Appeals Court
held that the various statements made by the three victims to the security
officers, police officers, and the EMT were properly admitted as spontaneous
utterances. However, with respect to the charge of assault and battery by means
of a dangerous weapon on Joel, the Appeals Court held that the evidence was
insufficient to support the conviction because the only evidence of that
assault came from the children's spontaneous utterances at the scene, yet the
eyewitnesses had all testified at trial that Joel had not been struck.[3]
Commonwealth v. Moquette, 53 Mass. App. Ct.
615, 619-620 (2002). Because of the circumstances in which the spontaneous
utterances had been made, "[t]he chance for lack of precision or
misstatement as to any one part of the incident, or for confusion as to the
details of what was said, is obvious." Id.
at 622. And, because the children testified as to the defendant's commission of
other crimes, the Appeals Court
was of the view that the children's recantation with respect to the defendant's
striking Joel could not have been the product of bias. Id.
The Appeals Court thus concluded that where a "trial witness, whose
extrajudicial statement is admitted as a spontaneous utterance, refutes the
accuracy of the reports of his prior statements, in circumstances in which the
witness has no apparent motive to lie and where the hearsay evidence is the
sole proof of an essential element of the offense charged," the conviction
cannot stand. Id. at 623 n.7.
Analogizing to cases involving substantive use of a witness's inconsistent
grand jury testimony, the Appeals Court added a requirement of corroboration
before recanted spontaneous utterances, absent any evidence that some bias
brought about the recantation, could suffice to support a conviction. Id. at
620-621, 623, citing Commonwealth v. Noble, 417 Mass. 341, 345-347 (1994),
Commonwealth v. Berrio, 407 Mass. 37, 45 (1990), and Commonwealth v. Daye, 393
Mass. 55, 74 (1984). For the following reasons, we decline to add any
requirement of corroboration to the spontaneous utterance exception to the
hearsay rule.
A spontaneous utterance is sufficient, by itself, to support a conviction. See
Commonwealth v. Whelton, 428 Mass.
24, 29-30 (1998); Commonwealth v. Alvarado, 36 Mass.
App. Ct. 604, 607 (1994). See also Commonwealth v.
Joyner, 55 Mass. App. Ct.
412, 417 (2002). In Whelton, the Commonwealth's only witness was the police
officer who responded to the scene following the victim's daughter's emergency
call. The daughter, visibly distraught, told the officer that the defendant had
just hit, kicked, and pushed her mother. The victim told the officer that the
defendant had pushed her off the sofa, intending that she would hit a table as
she fell. The officer's testimony laid a sufficient foundation for introducing
the daughter's statement as a spontaneous utterance, but did not include any
description of the victim's emotional state that would warrant the conclusion
that the victim was still under the sway of the exciting event. Id.
at 26-27. The officer testified that he had not observed any bruises or marks
on the victim. Id. at 25. The
victim testified for the defense, denying that she had been hit or kicked and explaining
that the defendant had "gently pushed or rolled her off the couch." Id.
The court held that the victim's hearsay statement to the police should not
have been admitted, but that the victim's testifying at trial for the defense
avoided any substantial risk of a miscarriage of justice. Id.
at 27. That left the daughter's spontaneous utterance as the sole evidence that
the defendant had committed an assault and battery; there was no corroboration
that the victim had been struck (i.e., no marks on her); and the victim
testified at trial that there had been no assault and battery. The court
rejected the defendant's argument that the evidence was insufficient to support
a conviction: "The daughter's out-of-court statements, which . . . were
admissible under the spontaneous utterance exception, established the elements
of the crime charged. The weight of the evidence was a matter exclusively for
the jury." Id. at 30.
That other evidence at trial may controvert the facts alleged in a spontaneous
utterance does not change the fact that the spontaneous utterance has been
admitted for substantive purposes and that it is for the jury to determine what
weight to give that substantive evidence. See
Commonwealth v. King, 436 Mass.
252, 256-257 (2002). The declarant's recantation is simply one form of evidence
that may be offered to try and detract from the weight of the spontaneous
utterance. See id.; Commonwealth v. Napolitano, 42
Mass. App. Ct. 549, 552-553 (1997); Commonwealth
v. Alvarado, supra at 605. Or, the evidence refuting the content of the
spontaneous utterance may come from a witness other than the declarant, as in
Commonwealth v. Whelton, supra. The mere existence of such contrary evidence
does not operate to add an additional requirement of corroboration in order for
the spontaneous utterance to constitute evidence sufficient for conviction.[4]
We reject the premise of the Appeals Court's analysis, namely, that there is
something special or different about the declarant's own recantation of the
substance of the spontaneous utterance that mandates some separate requirement
of corroboration.[5]
That this court has required corroboration before a conviction may rest on
certain other forms of out-of-court statements does not signal the imposition
of a corroboration requirement for every exception that allows the substantive
use of out-of-court statements. In Commonwealth v. Daye, 393 Mass. 55 (1985),
the court addressed the issue of the substantive use of a witness's grand jury
testimony when that testimony was inconsistent with the witness's trial
testimony. Traditionally, the "settled" and indeed
"orthodox" rule was that a witness's prior inconsistent statements
were admissible only for purposes of impeachment, but were inadmissible if
offered for their truth. Id. at
66-67, and cases cited. In deciding to deviate from that rule and permit the
substantive use of a witness's inconsistent grand jury testimony, the court was
willing to do so only with certain safeguards. Id.
at 73-75. There had to be "an effective opportunity for effective
cross-examination of the declarant at trial," id. at 73, the grand jury
testimony had to be the witness's own statement (not simply "yes" or
"no" responses to leading questions or the product of pressure by the
prosecutor or grand jurors), id. at 74 & n.20, and a conviction could not
be "based exclusively" on inconsistent grand jury testimony. Id.
at 74. See Commonwealth
v. Clements, 436 Mass. 190,
192-193 (2002).
By way of comparison, this court did not impose a corroboration requirement in
connection with the introduction at trial, for substantive purposes, of a
witness's inconsistent testimony given at a probable cause hearing.
Commonwealth v. Sineiro, 432 Mass.
735, 743-745 (2000). Unlike grand jury testimony, testimony at a probable cause
hearing is given in open court, subject to the rules of evidence, where the
defendant has both the motive and the opportunity to cross-examine the witness.
Id. at 744. Because the
circumstances attending a witness's inconsistent testimony at a probable cause
hearing gave that testimony "sufficient intrinsic reliability," it
could be introduced as substantive evidence "without the need for the type
of corroboration required by Daye, or, for that matter, any other type of corroboration"
(footnotes omitted). Id. at 745.
As Sineiro illustrates, there is no requirement that substantive use of a
witness's prior statement, inconsistent with the same witness's trial
testimony, must always be accompanied by corroboration before that prior
statement will suffice to support a conviction. Rather, the issue is whether
the prior statement is of the type that bears "sufficient intrinsic
reliability." Id. If it
does, corroboration is not required.
Spontaneous utterances have long been admitted for substantive purposes
precisely because they do bear sufficient indicia of reliability. "[T]he
evidentiary rationale for permitting hearsay testimony regarding spontaneous
declarations . . . is that such out-of-court declarations are made in
contexts that provide substantial guarantees of their trustworthiness."
White v. Illinois, 502 U.S.
346, 355 (1992). The spontaneous utterance exception "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 and removes their control, 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 made under the
immediate and uncontrolled domination of the senses, and during the brief
period when considerations of self-interest could not have been brought fully
to bear by reasoned reflection, the utterance may be taken as particularly
trustworthy (or, at least, as lacking the usual grounds of untrustworthiness),
and thus as expressing the real tenor of the speaker's belief as to the facts
just observed by him." Commonwealth v. McLaughlin, 364 Mass.
211, 222 (1973), quoting J. Wigmore, Evidence § 1747 (3d ed. 1940). See
Commonwealth v. King, 436 Mass. 252, 256 (2002) ("it is the circumstances
of the excited utterance that confer the requisite reliability");
Commonwealth v. Whelton, 428 Mass. 24, 28 (1998) ("A spontaneous utterance
is highly reliable and falls within a firmly rooted hearsay exception");
Commonwealth v. Zagranski, 408 Mass. 278, 285 (1990) ("an utterance is
spontaneous if it is made under the influence of an exciting event and before
the declarant has had time to contrive or fabricate the remark, and thus it has
sufficient indicia of reliability"); Commonwealth v. Dunn, 56 Mass. App.
Ct. 89, 93 (2002) ("spontaneity requirement [of spontaneous utterance
exception] flows from a general belief that reflex breeds reliability");
Commonwealth v. Carrasquillo, 54 Mass. App. Ct. 363, 368 (2002) ("it is
supposed that a person under stress tends to speak what comes spontaneously to
mind, without energy or disposition to invent lies; his excited utterance is
likely to be truthful in that sense, and so the hearsay objection is
overcome"). Where the entire premise underlying the spontaneous utterance
exception is that the circumstances tend to make such utterances reliable, we
will not simultaneously impose a requirement that they be corroborated, a requirement
that stems from the precise opposite concern that the form of out-of-court
statement at issue lacks intrinsic reliability.
We recognize that the theory underlying the spontaneous utterance exception,
namely, that the stress of the moment is likely to render the declarant's
statement reliable, has itself come under recent criticism. See, e.g., Note,
Timing Isn't Everything: Massachusetts'
Expansion of the Excited Utterance Exception in Severe Criminal Cases, 79 B.U.
L. Rev. 1241, 1265-1266 & nn. 177-182 (1999); Goldman, Distorted Vision:
Spontaneous Exclamations as a "Firmly Rooted" Exception to the
Hearsay Rule, 23 Loy. L.A. L. Rev. 453, 458-463 (1990). It is true, of course,
that the external shock, the very feature that makes such statements reliable
in the sense that they are unlikely to be the product of fabrication or
contrivance, may in other respects make the statement inaccurate as to
important details, which may be confused or exaggerated under the influence of
that shock. For example, a witness who just observed a horrific accident may
make some exclamation that is reliable as to the gist of what happened (as in,
"that huge truck just ran right over the little sports car"), but
still engage in hopelessly unreliable exaggeration (as in, "that truck was
going at least 150 miles an hour"). As with any form of evidence, it is
for the jury to determine what weight to give to a spontaneous utterance. And,
as with any form of statement or testimony, the jury may decide to accept some
parts and reject other parts of the statement or testimony. The jury thus sort
out what aspects of a spontaneous utterance deserve credence and weight, and
what aspects do not deserve credence or weight.
In any given case, the reliability of a particular spontaneous utterance may be
attacked in various ways: by challenging whether the words now ascribed to the
declarant were actually what the declarant said, whether the witness testifying
to the spontaneous utterance misunderstood or misremembered the remark in the heat
of the moment, or whether the excitement surrounding the event would have
rendered the declarant's own observations confused or inaccurate. Or, as here,
it may be argued that the declarant's contrary testimony at trial makes the
prior spontaneous utterance unworthy of present credence. However, we will not
treat that latter example as a subcategory of the spontaneous utterance
exception that is automatically less worthy of credence such that it warrants
the imposition of a corroboration requirement.[6] Rather, it is up to
the jury to determine whether to place greater weight on what the declarant
said in the immediate aftermath of the event or on what the declarant is now
saying at trial. "A statement that has been offered in a moment of
excitement — without the opportunity to reflect on the consequences of one's
exclamation — may justifiably carry more weight with a trier of fact than a
similar statement offered in the relative calm of the courtroom." White v.
Illinois, 502 U.S.
346, 356 (1992).
Here, the multiple spontaneous utterances of two declarants (Joel and Aneri)
provided substantive evidence that Joel had been struck with a belt wielded by
the defendant. Thus, even in the absence of any corroboration,[7] the
evidence was sufficient to sustain the defendant's conviction of assault and
battery by means of a dangerous weapon on Joel.
Judgment affirmed.
FOOTNOTES:
[1] The defendant was Motero's boy friend, and had
fathered one of Motero's children. He was sometimes referred to as Joel's
stepfather.
[2] The record is unclear precisely when in this
sequence of events Joel displayed his cut hand to the officer, but the officer
testified unambiguously as to having seen Joel's claimed injury.
[3] The factual premise
of the Appeals Court's
analysis is not quite accurate. Motero testified four separate times that the
defendant had hit "them" with the belt, referring to both children.
While she later changed her testimony in response to a leading question from
defense counsel and testified that the defendant had not hit Joel, the jury
were free to give more weight to the witness's repeated (and unprompted)
references to the victims as "them" than to her later response to a
single leading question.
Also admitted in evidence was the ambulance form completed by the EMT, which
references Joel's statement that he had been "struck with [a] belt once
across [right] hand and once across [right] lower leg." The Appeals Court
assumed that the ambulance reports were not technically admissible as hospital
records under G. L. c. 233, § 79, but noted that "[t]he interest of such a
declarant (i.e., a person seeking medical assistance) in providing accurate
information is the same whether the information is provided to emergency
medical workers in an ambulance or to doctors and nurses at a hospital."
Commonwealth v. Moquette, 53 Mass. App. Ct.
615, 619 n.3 (2002). Whatever their precise status, the records had been
admitted, and the defendant's motion in limine with respect to those records
had sought only to delete "all statements" in those records that had
"reference to the question of liability." At the defendant's request,
the records were redacted, although the defendant still contended that further
redactions should have been made. The record pertaining to Joel, as redacted,
made no reference to any crime having been committed or to the identity of the
person who had struck Joel with the belt, but referenced the fact of Joel's
having been struck by a belt as the injury for which he was then being
examined. That underlying fact did not need to be redacted. See Commonwealth v.
DiMonte, 427 Mass. 233, 242 (1998) ("fact-specific references to the
reported cause of the [victim's] injuries are part of her medical history and
are relevant to treatment" and therefore admissible as part of her medical
record, but references to victim's being "assaulted" comprise
"the ultimate conclusion of the crime charged" and should have been
redacted). As such, the ambulance record also provided substantive evidence
that Joel had been hit with a belt.
[4] Indeed, in Commonwealth v. Whelton, 428 Mass. 24
(1998), the evidence contravening the spontaneous utterance was even more
weighty than that offered here – the victim denied that the assault occurred,
there was no evidence of the victim's motive to lie, and the officer's
observations of the victim did not corroborate the account of the attack
provided by the declarant.
[5] Courts in other jurisdictions have similarly held
that a conviction may be based solely on evidence admitted as a spontaneous utterance,
despite the declarant's later recantation. See Williams v. State, 714 So. 2d
462, 463-466 (Fla. Dist. Ct. App. 1997); People v. Fratello, 92 N.Y.2d 565, 574
(1998), cert. denied, 526 U.S.
1068 (1999); Commonwealth v. LaRosa, 283 Pa.
Super. 264, 270-271 (1980).
[6] Nor will we split hairs even more finely and
create the sub-subcategory of spontaneous utterances identified by the Appeals
Court, i.e., spontaneous utterances the substance
of which are recanted at trial by the declarant where the declarant witness had
"no apparent motive to lie." Commonwealth v. Moquette, 53
Mass. App. Ct. 615, 623 n.7 (2002). Using this
case as an example of that sub-subcategory, the cold record fails to support
the conclusion that Joel had no reason to fabricate his later denial that he
had been assaulted. There was evidence that Joel, after his initial statements,
became "sullen" and "withdrawn." There is also the curious
fact that, despite displaying his cut hand to the officer, he began to claim
that he had not been hurt. Similarly, he told the EMT about having been hit
with the belt, but denied any "pain or inj[ury]" or any
"complaint." Most importantly, the jury observed the child's demeanor
when he denied that "anything" had happened to him that morning, and
also observed him decline to answer an explicit question as to whether he had
been hit. Even working from a mere transcript, the reluctance of Joel and Aneri
to testify is palpable, and their ostensible "recantations" are
hesitant at best. The assessment of such recantations, and the motives that may
have inspired them, should be left to the sound judgment of the fact finders
who have observed the witnesses while they made those recantations.
[7] Although, for the reasons stated, we decline to
impose a requirement that the Commonwealth present evidence to corroborate the
recanted spontaneous utterances, we note that there was ample corroboration on
this record. The officer's observation of Joel's injured hand, the mother's
testimony, and the ambulance records all corroborated that Joel had also been
hit. See note 3, supra. Moreover, the precision of the ambulance report, made
out by an EMT immediately following his examination of Joel, also dispels any
concern that Joel's and Aneri's spontaneous utterances to the effect that Joel
had been struck were the product of "error, confusion, or
misstatement" on the part of either the declarants or the testifying
officers. Commonwealth v. Moquette, 53 Mass. App. Ct.
615, 622 (2002).