Domestic Assault and Battery case in Massachusetts can be proven even if the victim does not wish to testify. As a Massachusetts Criminal Defense Lawyer, these cases involve important questions of Constitutional law and the right of confrontation. The right to confront an accuser in court is one of the most important right to ensure a fair trial and justice in court. The Massachusetts Appeals Court recently decided a case addressing the 6th Amendment right of confrontation in a domestic assault and battery case. The Appeals Court addressed this issue in Commonwealth v. Roy Rand decided in June of 2020.
What guidance did the Appeals Court provide as to when a 911 call is admissible in evidence at trial?
The Appeals Court stated that the Court engages in a two step inquiry to determine when an out of court statement can be admitted:
- Whether the statement is admissible under the rules of evidence;
- Whether the admission of the statement would violate the defendant right of confrontation.
The Appeals Court reviewed the law on whether statements are testimonial versus non testimonial.
TEST FOR DETERMINING WHETHER A STATEMENT IS TESTIMONIAL
The Court stated that statements are non testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police to respond to an ongoing emergency. If however, there is no ongoing emergency and the primary purpose of the interrogation is to establish or prove a paste event relevant to criminal prosecution, the statements are testimonial.
The Court sited some cases within the Roy decision so I want to briefly mention those so you can decide whether you want to read them. The Appeals Court sited the case of Commonwealth v. Wadsworth, 482 Mass. 454 (2019) a murder case and Williams v. Illinois, 567 U.S. 50 (2012) case from the US Supreme Court about having a substitute chemist testify. The Appeals Court also sited Commonwealth v. Middlemiss, 465 MAss. 627 (2013) where the defendant was convicted of murder and argued that the victim identifying him by name violated his right of confrontation.
The SJC did set forth the standard the Court will employ under the confrontation clause: In Middlemiss, the Massachusetts Supreme Court staled that the touchstone of confrontation clause analysis is whether the primary purpose of the defendant’s out-of-court statement is intended to prove past events potentially relevant to criminal prosecution.
The Court stated that the existence of an ongoing emergency is one factor but an important factor.
Other factors include:
- The formality of the statement;
- The nature of the statements and actions of both the declarants and interrgators;
The determination of an ongoing emergency is objective and highly context-dependent. The existence and duration of the emerency depends on the type and scope of the danger posted to the victim, the police and the public. Factors bearing on the existence of an ongoing emergency include:
- Whether the defendant is armed
- The type of weapon employed
- The severity of the victim’s injuries or medical condition
The SJC said thus the potential scope of the ongoing emergency could contribute to how long the emergency lasts; the Appeals Court found that statements can begin testimonial and become non-testimonial; The Appeals Court reviewed whether the statements that the victim made to the 911 dispatcher were testimonial. The statements were as follows:
The Appeals Court held that the Commonwealth bears the burden of proving the facts necessary to determination of admissibility by a preponderance of the evidence.
Factors that distinguish testimonial statements from non testimonial statements:
- Whether the declarant was speaking about an event as they were actually happening rather than describeng past events
- Whether any reasonable listener would recognize that the declarant was facing an ongoing emergency rather than to simply learn what happened in the past.
- The level of formality of the interview.
The Appeals Court in Roy held that the initial statement, identifying the defendant and saying he beat her up was non-testimonial.
Statements in response to dispatcher asking what happened were testimonial.
The Appeals Court held that the call returned to a non testimonial topic when dispatcher about the victim’s medical condition and to prepare the first responders.
The court in Roy found that once the police arrived at the scene there was no ongoing emergency and those statements were all testimonial.
OTHER RELEVANT APPEALS COURT CASES ON 911 CALLS AND DOMESTIC ASSAULT ALLEGATIONS
Commonwealth v. Carlos Rodriguez, 90 Mass. App. Ct. 315 (2016):
In Commonwealth v. Carlos Rodriguez, 90 Mass. App. Ct. 315 (2016), the police were dispatched to a domestic assault and battery. Officers met the victim in the hallway and observed her to be very upset. The victim had tears running down her face, red eyes and disheveled hair and a torn shirt. The officer also observed marks on her arms. The victim saw another officer who she knew, ran to him, gave him a hug and spoke to him in Spanish. The victim demonstrated to the officer, how the defendant did it, by grabbing her by the hair. At trial, the Commonwealth presented solely the testimony of what the victim said to the officers. The victim did not testify and the defendant did not testimony. At trial, the defendant read portions of the Dangerousness hearing testimony where she denied that the incident happened.
During closing, the defendant relied on this statement to say her statements to the police weren’t credible. The Commonwealth urged the jury to rely on statements close in time to the event. The Court in Rodriguez noted the following testimony came in during the motion in liming hearing. The officer arrived within 5 minutes of the radio call. The victim was crying, hysterical, Disheveled And trembling with hair in disarray. Her eyes were red, shirt torn and visible bruises on her body and she was highly emotional. The Appeals Court found that the statement to officer at the scene were testimonial. He was a uniform police officer, defendant no longer at the scene.
In the Rand case, the Court found that the victim’s initial statement to the 911 dispatcher was admissible. This is problematic because through the Court found other statements testimonial, the first statement to the dispatcher may be enough in many cases for a conviction. The Court the victims first statement to the 911 operator I need someone to come to my house my boyfriend tried to beat me up were nontestimonial. Further questioning of the dispatcher resulted in the statements being testimonial when dispatch asked what happened. The Appeals Court found that a reasonable person in the defendant’s position would have understood that her statement would be used for further criminal prosecution.
It is important to continue to argue confrontation clause issues under both the Sixth Amendment and Article 12 as changes to the court may result in the court interpreting the Sixth Amendment as written as demanding face to face confrontation.