Commonwealth v. Rand

487 Mass. 811

170 N.E.3d 324

COMMONWEALTH

v.Roy RAND.

SJC-13047

Supreme Judicial Court of Massachusetts, Norfolk.

Argued March 1, 2021.

Decided July 6, 2021.

Geraldine C. Griffin for the defendant.

Meagen K. Monahan, Assistant District Attorney, for the Commonwealth.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, & Georges, JJ.

LOWY, J.

On July 25, 2015, the victim called 911 and reported that her boyfriend, the defendant Roy Rand, had "just beat [her] up," "knocked [her] out a couple of times," and "tried to kill [her]." She stated that the defendant had left her apartment "like two minutes ago." When officers arrived at the apartment minutes later, she was still on the telephone with the 911 dispatcher. She was so distraught that she appeared not even to register that police had arrived. Officers then spoke to her before she subsequently left in an ambulance.

The victim did not testify at the defendant's trial. Instead, the key evidence at trial was a recording of the victim's 911 call, and the responding officers’ recounting of the victim's statements. The defendant was convicted of assault and battery, G. L. c. 265, § 13A ; and strangulation, G. L. c. 265, § 15D.¹ The defendant appealed, arguing that admitting the victim's statements violated his right to confrontation under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. The Appeals Court reversed his convictions, holding that his confrontation rights were violated. Commonwealth v. Rand, 97 Mass. App. Ct. 758, 759, 149 N.E.3d 1279 (2020). We granted further appellate review.

We hold that most of the admitted statements were not made with the primary purpose of creating a substitute for trial testimony. See Michigan v. Bryant, 562 U.S. 344, 358, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011). Thus, they were nontestimonial and did not violate the defendant's confrontation rights. To the extent that the victim's statements evolved into being testimonial just prior to the victim entering the ambulance, that statement was duplicative of other evidence and its admission was harmless beyond a reasonable doubt. Thus, we affirm the defendant's convictions.

Background. Prior to the incident that precipitated this case, the defendant and the victim had dated on-again and off-again for approximately five years. They had a child together, and the defendant visited regularly.

On July 25, 2015, at approximately 12:45 A.M. , the victim called 911.² She was sobbing and began the call by saying, "I need somebody to come to my house," and "My boyfriend just beat me up." When the dispatcher asked whether the boyfriend was still present, the victim replied that he had left with her sister "like two minutes ago, since I called you guys." The dispatcher asked, "What exactly happened tonight?" and the victim stated that her sister had been "causing trouble" and the boyfriend took the sister's side and then "knocked [the victim] out a couple of times." She indicated that her boyfriend had punched her in the face and "tried to kill [her]."

Approximately four minutes and thirty seconds into the call, Sergeant Phillip Yee and Officer John Connolly of the Braintree police department arrived at the victim's house. She was still on the telephone with the dispatcher. Yee had to contact the dispatcher over the police radio and ask her to tell the victim to hang up the telephone so that the victim could speak with the officers. Yee and Connolly testified that the victim was "very upset," "heav[ing]," "in tears, sobbing, [and] kind of hysterical."

Yee and Connolly asked the victim to tell them what happened, and she recounted that her boyfriend, whom she called Roy, had beaten her. She said that he "punched her several times in the head, [and] at one point he choked her and he used his knees to put on her throat." This had caused her to lose consciousness. When she woke up, he started hitting her again, and then choked her again, this time with his hands. As a result of losing consciousness, she had urinated on herself. She also stated that her sister had "slapped her in the face with an open hand two or three times." Because the victim was complaining of pain in the back of her head, Yee called an ambulance. The officers also observed that the victim's eyes were "bloodshot and veiny ... like there was ... blood in them" and that her cheek and jawline were swollen and bruised. Yee and Connolly spoke to the victim for approximately five minutes when they first entered the apartment before the ambulance arrived. The victim's three year old daughter was also present in the apartment.

When the ambulance arrived, medics evaluated the victim. Yee and Connolly were still in the apartment, but spoke to the victim only "intermittently" so as not to interrupt the medical examination. The medics recommended that the victim be transported to a hospital. At first, she was reluctant to go and appeared to be scared. Yee directed Connolly to accompany the victim to the hospital and assured the victim that they would keep her safe. Yee told the victim that they would bring her daughter to the hospital as well to ensure the daughter's safety. As the officers were persuading the victim to go to the hospital, she indicated that she was still scared of the person who attacked her. She again named that person as the defendant. In total, Yee and Connolly were at the victim's apartment for ten to twenty minutes before she got into the ambulance.

Connolly then accompanied the victim in the ambulance to the hospital, where Yee eventually met both. At the hospital, Yee photographed the victim's injuries.

Shortly after the defendant was arraigned on the charges in this case, the victim stopped cooperating with the Commonwealth. Anticipating that she would not testify at trial, the Commonwealth filed two motions in limine: one to admit a recording of the victim's 911 call, and the other to admit statements that the victim had made to Yee and Connolly. The defendant opposed both motions. After two hearings in which the judge listened to the 911 call and conducted a voir dire of Yee and Connolly, the judge granted the Commonwealth's motion to admit the 911 call and granted in part the motion to admit the victim's statements to Yee and Connolly. The judge ruled that the victim's statements to Yee and Connolly were admissible up until the point that the victim left in an ambulance to go to the hospital.

Discussion. 1. Standard of review. "We accept the judge's findings of fact unless clearly erroneous but independently apply constitutional principles to the facts found" (citation omitted). Commonwealth v. Beatrice, 460 Mass. 255, 259, 951 N.E.2d 26 (2011). When a judge's findings are based on documentary evidence, such as a 911 call recording, we review those findings de novo. Commonwealth v. Tremblay, 480 Mass. 645, 654-655, 107 N.E.3d 1121 (2018). Where the defendant objected, "we evaluate the admission of constitutionally proscribed evidence to determine whether it was harmless beyond a reasonable doubt." Commonwealth v. Wardsworth, 482 Mass. 454, 458, 124 N.E.3d 662 (2019), quoting Commonwealth v. Nardi, 452 Mass. 379, 394, 893 N.E.2d 1221 (2008). "If the defendant's constitutional objection was not preserved, we still review the claim to determine whether there was a substantial risk of a miscarriage of justice." Commonwealth v. Galicia, 447 Mass. 737, 746, 857 N.E.2d 463 (2006).

2. Confrontation clause. Out-of-court statements offered for the truth of the matter and asserted by a declarant who does not testify at trial must pass two "distinct but symbiotic" tests to be admitted. United States v. Brito, 427 F.3d 53, 60 (1st Cir. 2005), cert. denied, 548 U.S. 926, 126 S.Ct. 2983, 165 L.Ed.2d 989 (2006). "First, the statement must be admissible under our common-law rules of evidence as an exception [or exemption] to the hearsay rule." Beatrice, 460 Mass. at 258, 951 N.E.2d 26. "Second, the statement must be nontestimonial for purposes of the confrontation clause of the Sixth Amendment." Id. See Commonwealth v. Caruso, 476 Mass. 275, 295 n.15, 67 N.E.3d 1203 (2017).³ Here, the defendant concedes the statements at issue arguably fit within the spontaneous utterance exception to the rule against hearsay. See Mass. G. Evid. § 803(2) (2021). Thus, the sole issue on appeal is whether the statements were testimonial.

"Testimonial statements are those made with the primary purpose of ‘creating an out-of-court substitute for trial testimony.’ " Commonwealth v. McGann, 484 Mass. 312, 316, 141 N.E.3d 405 (2020), quoting Wardsworth, 482 Mass. at 464, 124 N.E.3d 662. See Commonwealth v. Imbert, 479 Mass. 575, 580, 97 N.E.3d 335 (2018), citing Bryant, 562 U.S. at 358, 131 S.Ct. 1143 ; Commonwealth v. Middlemiss, 465 Mass. 627, 634, 989 N.E.2d 871 (2013). See also Wardsworth, supra at 464 n.18, 124 N.E.3d 662 ("the appropriate method of analysis is the ‘primary purpose’ test"). In essence, the inquiry looks at whether the out-of-court declarant's statement is the equivalent of bearing witness because "[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Thus, "[t]he question is whether, in light of all the circumstances, viewed objectively, the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial testimony.’ " McGann, supra at 317, 141 N.E.3d 405, quoting Ohio v. Clark, 576 U.S. 237, 245, 135 S.Ct. 2173, 192 L.Ed.2d 306 (2015).

Over time, the United States Supreme Court has refined the test to determine whether a statement is testimonial. When the Court reinvigorated the confrontation clause in Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354, it declined to set out a definition of "testimonial," although it cited to various examples that would be either...