COMMONWEALTH vs. JOHN TANG.

LENK, J. The issues on appeal arise from the admission in evidence of certain statements that a young boy -- the defendant's son -- made to a police officer in the immediate aftermath of a shooting. That shooting took place in the boy's family home and involved both his father and his uncle. The boy was not called to testify at trial. Instead, his statements were admitted over objection through the officer's testimony under the spontaneous utterance exception to the rule against hearsay.

Page 54

On appeal, the defendant asserts reversible error in two respects. First, he claims that the boy's out-of-court statements to police, offered without benefit of confrontation, were testimonial in nature and therefore inadmissible under Crawford v. Washington, 541 U.S. 36 (2004), and Commonwealth v. Gonsalves, 445 Mass. 1 (2005). Second, in reliance upon Commonwealth v. King, 436 Mass. 252 , 254 (2002), the defendant maintains that the trial judge erred in admitting the statements as spontaneous utterances without first conducting a voir dire examination of the boy to ascertain his testimonial competency.

On the first point, we conclude that the boy's statements to police were not testimonial in nature and, accordingly, that the defendant's constitutionally guaranteed confrontation rights were not violated by admitting them in evidence. As to the second point, we are of the view that a voir dire examination of the child declarant was not necessary in the circumstances and discern no abuse of discretion in the admission of the challenged evidence.

Background. After trial by jury, the defendant, John Tang, sometimes referred to as Toan Tang, was convicted of assault by means of a dangerous weapon in violation of G. L. c. 265, § 15B(b), and of various firearm-related offenses. [Note 1]

The defendant shared a single-family house in Framingham with his five year old son Michael, [Note 2] his parents, and his brother Ken. Ken's girlfriend, Sammi Tong, was asleep in Ken's bedroom at about 1:30 P.M. on Sunday, July 22, 2001, while Ken was away from home on an errand. Sammi awoke, hearing the defendant yelling outside the bedroom door and what sounded like a gunshot in the house. She telephoned Ken to come home immediately. Another shot was fired through the bedroom door into the bedroom wall. The defendant appeared in the doorway, pointed a gun at Sammi and accused her of going down into the basement, where he slept with Michael. As

Page 55

the defendant was running first upstairs to see whether anyone else was home, then downstairs to chain lock the front door, Sammi fled to a neighbor's house to call 911. Seeking police help, she reported to the dispatcher that "John" fired a gun in the house.

Meanwhile, Ken returned to the house, and after the defendant let him in, a fight ensued between the brothers, during which the defendant pointed a gun at Ken's head. After wrestling for the gun, the two eventually agreed to put it on a table in the kitchen. The police arrived and spoke briefly with Sammi, who was on the neighbor's front porch, visibly upset, crying, and almost hysterical. The police then formed a perimeter around the Tang house, took cover, heard two people inside the house yelling at each other, and saw shadows and movement inside. As officers approached the front door, a frightened-looking little boy, later identified as Michael, briefly appeared on the porch but ran back inside. The police then announced themselves and ordered those inside to come outside; the two brothers emerged and were handcuffed. The defendant told police that there was a gun on the kitchen table.

Knowing that there was a young child inside the house as well as a gun, but not knowing who else might still be there, Detective Patricia Grigas and other officers entered the house to clear and secure it. There, Grigas saw a very upset and shaken Michael standing near the entrance to the kitchen, which was in disarray with pooled blood on the floor. Grigas went into the kitchen to get the gun while scanning the adjacent room for any other people. She asked Michael, whom she described as "very excited, very upset," and "rambling," if anyone else was in the house. He replied, "Kenny and John were fighting," and pointed to the blood [Note 3] in the kitchen. As he ran toward the gun on the table, Grigas pulled him away and asked him again whether there was anyone else in the house. Michael continued to point out the mess in the kitchen and said that the defendant had "fired a gun two times making a loud noise in the house." Michael pointed with both hands in the direction of the basement

Page 56

and bedroom doors, saying, "He shot there and there making a loud noise in the house."

After being advised of his Miranda rights, the defendant told police that his son had awakened him in the basement to tell him that someone was in the house. He checked the house for intruders, at some point with gun in hand, and pointed it at Sammi when she did not initially answer him. At trial, the defendant did not testify or call any witnesses but, through cross-examination of other witnesses, established that his relationship with household members was strained and that his brother Ken wanted him out of the house so that he could have the defendant's basement room.

Facts pertinent to appellate issues. The Commonwealth moved in limine to introduce as spontaneous utterances certain statements made by Sammi and Michael. The judge allowed the motion as to Sammi's statements but reserved her ruling as to Michael's statements in the face of defense counsel's objection that he would not be able to cross-examine Michael, whom the prosecutor was not calling as a witness. [Note 4] Before calling Grigas to the stand, the prosecutor alerted the judge that, through Grigas, he planned to introduce as spontaneous utterances the statements that Michael had made to Grigas in the immediate aftermath of the shooting. The defendant objected, this time essentially on the basis of Michael's testimonial competency given his age, and the asserted impropriety of police "interviewing" such a young child absent adult supervision.

Grigas first testified on direct examination as to other matters and then on voir dire as to the circumstances in which Michael's statements to her had been made. Just before the voir dire, defense counsel pressed the point that it was inappropriate for the police to have done any "interview" of the child and that, were the Grigas voir dire to go forward, he might have to call Michael in "rebuttal." However, counsel noted that getting the child into court would take another day or two and would "create another nightmare for the trial." The judge advised defense

Page 57

counsel that "[i]f you think Michael is a necessary witness . . . you undertake whatever efforts to get him here today." Defense counsel then informed the judge that Michael was unavailable that day.

After the Grigas voir dire examination, the judge indicated her view that the child's statements had been made within the context of a very stressful event, had not been made in response to police questions, were inherently trustworthy, and were admissible as spontaneous utterances. She then invited defense counsel to make "whatever arguments you need to make, call in whatever witnesses you think are appropriate." Counsel responded by remarking that Michael was five years old, that "it's almost impossible for this child to say the things that have been testified to here. He is very, very low verbal skill. He doesn't have the communication abilities that are being professed here . . . . [T]here's no understanding of whether that child has any kind of a mental disability at the point where these officers go in." Defense counsel went on to say that the admission of Michael's statements would create the need for Michael to testify as a witness, which his family did not wish to see happen. Grigas then resumed her trial testimony and Michael's statements were admitted as spontaneous utterances.

Later that day, the judge mentioned to defense counsel that Michael's grandmother appeared to be in the courtroom. Given the question that counsel had earlier raised as to Michael's competence, the judge suggested that "if you want to pursue that line of inquiry, she may well be a person who could speak to that." Defense counsel responded by indicating that he needed some time, that his client did not want Michael to testify, and that if his client would permit the grandmother to testify as to Michael's incompetency, he would not call Michael. The judge also volunteered to craft a child witness instruction for the jury. Subsequently, defense counsel informed the court that the defendant declined to call Michael as a witness; he said nothing further about calling the grandmother to testify or about the proposed child witness instruction.

Discussion. 1. Whether the admission of the child's statements to police violated the defendant's confrontation rights. The defendant contends that the out-of-court statements that

Page 58

Michael made to the police at the scene of the shooting were testimonial. Irrespective of whether such statements satisfied the foundational requirements for admission as spontaneous utterances under our rules of evidence, the defendant maintains that such statements were nonetheless inadmissible under the confrontation clause of the Sixth Amendment to the United States Constitution [Note 5] and art. 12 of the Massachusetts Declaration of Rights. [Note 6] See Crawford v. Washington, 541 U.S. at 68. His confrontation clause rights were violated by the admission of Michael's testimonial statements because, he argues, no showing had been made as to Michael's unavailability to testify, and even if he had been shown to be unavailable, the defendant had not had a prior opportunity to cross-examine the boy.

The question turns on whether the child's statements were testimonial. While not comprehensively delineating what types of statements would constitute testimonial evidence, the Court in Crawford v. Washington held that statements made in the course of police investigations are testimonial. Id. at 52. [Note 7], [Note 8] In Commonwealth v. Gonsalves, 445 Mass. at 8-9, the Supreme Judicial Court considered whether, in light of Crawford v.

Page 59

Washington, statements that are made to law enforcement agents are testimonial per se. It held that such questioning, including preliminary fact gathering, constitutes interrogation designed to apprehend the perpetrator; questioning of this sort is accordingly deemed testimonial per se. Id. at 9. "No further analysis is needed. The statements are inadmissible unless the declarant testifies at trial or formally is unavailable and was previously subject to cross-examination." Ibid.

Emergency questioning designed to secure a volatile scene or provide medical care, however, is not related to the investigation of a crime and does not constitute interrogation. "[S]uch questioning is considered part of the government's peacekeeping or community care function," ibid., and "cannot be said to be interrogation. Because the questioning is not interrogation, any out-of-court statements it elicits are not testimonial per se and must be evaluated on a case-by-case basis to determine whether they are testimonial in fact." Id. at 10. Whether the questioning at issue had its genesis in the community caretaking function or the need to secure a volatile scene, on the one hand, rather than in the investigative function, on the other, "does not depend . . . on answers to police questions, but on the existence of objective circumstances." Ibid. Whether incriminating out-of-court statements that are determined not to be testimonial per se are nonetheless testimonial in fact depends on "whether a reasonable person in the declarant's position would anticipate the statement's being used against the accused in investigating and prosecuting a crime." Id. at 12-13.

We conclude that the statements Michael made to Grigas are not testimonial per se. The questions were posed on an emergency basis while the police were securing a volatile scene. During her voir dire examination, Grigas testified that she and another officer entered the house to "clear the rest of the residents, knowing already that there was a small child inside, having seen him come outside and run back in." She elaborated that "clear" meant making sure that no one else with weapons was in the house. The first question she put to Michael was whether there was anyone else in the house, a question to which he did not directly respond. Instead, he spoke of "Kenny" and the defendant fighting in the kitchen, pointing to the gun and to

Page 60

different areas of the house, remarking on the "mess," the gun being fired, and the loud noise. Grigas testified that "[t]here was some confusion because [Michael] referred to 'Toan,' and then I believe at one time he said 'John,' and then, again, 'dad.' . . . So we weren't sure initially if there were two individuals fighting or up to four people fighting." Michael was removed from the house within five to ten minutes of Grigas's arrival there. The trial judge asked Grigas specifically what questions she had asked Michael and was told that "we kept asking him, 'Who else is here?' 'Who's in the house?' . . . . 'What happened to you?' 'Who's here?' 'Who's in the house right now?' "

We see nothing in the record to suggest that the questions put to Michael were in aid of the investigation or prosecution of a crime. [Note 9] Unlike in Commonwealth v. Rodriguez, 445 Mass. 1003 , 1004 (2005), the statements were not made in the context of a "secure scene," nor were they "made in response to investigatory interrogation." See Commonwealth v. Williams, 65 Mass. App. Ct. 9 , 12-13 (2005). The statements that Michael made were not even directly responsive to the questions asked him, and the questions that had been put to him were posed in the context of an emergency for the purpose of securing a volatile scene. The statements are not testimonial per se.

That statements are not testimonial per se does not end the inquiry; we must determine whether the statements were testimonial in fact. Michael was five years old at the time and had just witnessed a bloody fracas in his home involving his father and his uncle, in the course of which he heard a gun being discharged. It is almost inconceivable that, moments after such an event, a child in Michael's condition -- described as essentially frantic -- could have spoken in contemplation of a

Page 61

future legal proceeding. As in Commonwealth v. Foley, 445 Mass. 1001 , 1002 (2005), "[n]othing in the record indicates that [Michael's] intent in making [his] statements was testimonial. Further, a reasonable person in [Michael's] position would not have anticipated that . . . [his] statement[s] would be used against the accused in investigating and prosecuting the crime." [Note 10] We accordingly conclude that the challenged statements were neither testimonial per se nor testimonial in fact and that their admission in evidence as spontaneous utterances did not violate the defendant's confrontation rights.

2. Necessity of voir dire examination of the declarant to determine testimonial competency before admitting the declarant's out-of-court statements as spontaneous utterances. A spontaneous utterance is one that is in response to an event "sufficiently startling to render inoperative the normal reflective thought process of the observer," which results in a statement that is a "spontaneous reaction to the occurrence or event and not the result of reflective thought." Commonwealth v. Santiago, 437 Mass. 620 , 623 (2002), quoting from 2 McCormick, Evidence § 272, at 204 (5th ed. 1999). See Commonwealth v. King, 436 Mass. at 254; Commonwealth v. Kenney, 437 Mass. 141 , 150-151 (2002); Commonwealth v. Correa, 437 Mass. 197 , 201-202 (2002). The proponent of such evidence must show that "there was an exciting event that would give rise to the exception" and that "the declarant displayed a degree of excitement sufficient to conclude that [the] statement was a spontaneous reaction to the exciting event, rather than the product of reflective thought." Commonwealth v. Santiago, supra at 624. That "should . . . end . . . the inquiry." Id. at 625. See Commonwealth v. Evans, 438 Mass. 142 , 154-156 (2002); Commonwealth v. Moquette, 439 Mass. 697 , 704-706 (2003). There is "no definite and fixed limit of time. Each case must depend upon its own circumstances." Commonwealth v. Ruiz, 442 Mass. 826 , 833 (2004), quoting from Commonwealth v. DiMonte, 427 Mass. 233 , 239 (1998).

Page 62

The defendant does not suggest that Michael's statements failed to satisfy any of the aforesaid tests. Instead, he appears to claim that the proponent of the evidence must also show, when challenged, that the declarant is competent, and that this is to be accomplished by a voir dire examination of the declarant. He asserts that he did challenge Michael's testimonial competency and that it was accordingly incumbent upon the judge then to have conducted a voir dire examination of Michael to ascertain his competency before admitting his statements as spontaneous utterances. Her failure to do so, he maintains, was reversible error.

The defendant bases his contention on one sentence in Commonwealth v. King, supra at 255, in which the court, citing Commonwealth v. Crawford, 417 Mass. 358 , 362-363 (1994), S.C., 430 Mass. 683 (2000), [Note 11] stated that "[a]s with any other witness, the declarant must have personal knowledge of the event in question, and must be competent." Unlike the defendant, we do not read Commonwealth v. King or, for that matter, Commonwealth v. Crawford, as requiring the trial judge in such circumstances to conduct a voir dire examination of the declarant.

It is true that, under our cases, it has long been held that

Page 63

"when a witness is called, and it is objected that by reason of insanity or youthfulness he does not understand the nature of the oath, and is therefore incompetent, it is the duty of the judge to examine into the question of his competency, and to reject him unless he is satisfied that he is competent." Commonwealth v. Reagan, 175 Mass. 335 , 339-340 (1900). As we said more recently in Commonwealth v. Lamontagne, 42 Mass. App. Ct. 213 , 215-216 (1997),

"The basic rule under G. L. c. 233, § 20, as appearing in St. 1983, c. 145, is that any person of sufficient understanding is qualified as a witness. While age is of importance, it is not the test. An objection, or a request for a hearing, requires the trial judge to conduct a voir dire examination of the witness to determine his or her competency by application of the well established two-prong test repeated in [Commonwealth v. Brusgulis, 398 Mass. 325 , 329 (1986)]: (1) whether the witness has the general ability or capacity to observe, remember, and give expression to that which she ha[s] seen, heard, or experienced; and (2) whether she has understanding sufficient to comprehend the difference between truth and falsehood, the wickedness of the latter and the obligation and duty to tell the truth, and, in a general way, belief that failure to perform the obligation will result in punishment. It is also well established that [w]hether the test is met is peculiarly for the trial judge, and his determination will be rarely faulted on appellate review." (Citations and quotations omitted.)

It is within the trial judge's "broad discretion to determine whether a competency hearing is required, and whether a witness is competent to testify." Commonwealth v. Allen, 40 Mass. App. Ct. 458 , 461 (1996).

The bar for competency that has been set, moreover, is not a high one. "[U]nder the modern trend, a judge may accept as competent for testimony a witness whose reliability is, in her judgment, at most, marginally sufficient." Demoulas v. Demoulas, 428 Mass. 555 , 564 (1998). See Commonwealth v. Echavarria, 428 Mass. 593 , 596 (1998) (test for competence "not very stringent"). A child is not presumed to be incompetent to testify. Commonwealth v. Lamontagne, supra at 217 n.5.

Page 64

It perhaps goes without saying that the above case law addresses the testimonial competency of witnesses who are in court and available to testify. While within the judge's discretion, the decision to conduct a voir dire of an available prospective witness when the judge thinks it prudent is a fairly straightforward matter. The matter is not so straightforward, however, with declarants of spontaneous utterances, whose statements may be offered as such in many instances because the declarant is unavailable to testify in court. [Note 12]

Given the "not very stringent" test we employ in ascertaining testimonial competency, it is by no means clear that the amorphous matters that the defendant brought to the judge's attention as to Michael's competency (five years old, low verbal skills) would have required the judge to conduct a voir dire examination had Michael been available to testify as a witness. We are quite clear, however, that the judge was not required, in the face of such information, [Note 13] to conduct a voir dire examination of Michael as the declarant of spontaneous utterances.

While Commonwealth v. King, 436 Mass. at 255, indicates that declarants "must have personal knowledge of the event in question, and must be competent," there has not been, to our knowledge, any further elucidation of the point in subsequent cases discussing spontaneous utterances. Absent such guidance, what this entails is perhaps best explained by Professors McCormick and Wigmore. Professor McCormick writes of the "frequently encountered" issue whether the declarant of a spontaneous

Page 65

utterance "meets the tests of competency for a witness" as follows:

"In a modified manner, the witness is required to have firsthand knowledge. Direct proof of observation is not necessary; if the circumstances appear consistent with opportunity by the declarant, the requirement is met. If there is doubt, the question should be for the jury. . . .

"On the theory that there is a countervailing assurance of reliability in the excitement of the event, the other aspects of competency are not applied. Thus, an excited utterance is admissible despite the fact that the declarant was a child and would have been incompetent as a witness for that reason, or the declarant was incompetent by virtue of mental illness."

2 McCormick, Evidence § 272, at 209-210. Similarly, Professor Wigmore explains:

"(a) Upon the ordinary principle applicable to all testimonial evidence . . . and therefore to hearsay statements offered under these exceptions . . . , the declarant must appear to have had an opportunity to observe personally the matter of which he speaks.

". . .

"(c) By the general principle applicable to these exceptions to the hearsay rule . . . , the declarant must at least not lack the usual testimonial qualifications . . . that would be required of him if testifying on the stand . . . .

"(1) Does the disqualification of infancy . . . exclude declarations otherwise admissible? It would seem not; because the principle of the present exception obviates the usual sources of untrustworthiness . . . in children's testimony; because, furthermore, the orthodox rules for children's testimony are not in themselves meritorious . . . ; and, finally, because the oath test, which usually underlies the objection to children's testimony, is wholly inapplicable to them."

Page 66

6 Wigmore, Evidence § 1751 (Chadbourn rev. ed. 1976). [Note 14]

In apparent harmony with these scholarly views on the meaning of competency in the context of spontaneous utterances, our case law, see, e.g., Commonwealth v. Moquette, 439 Mass. at 704-706, suggests that the reliability of such statements derives primarily from the circumstances in which they are uttered rather than from the declarant. Given this, we discern no requirement that a judge in the ordinary course must conduct a voir dire examination of the declarant. Moreover, in light of the circumstances we have set forth in some detail supra, as well as the broad discretion that a trial judge enjoys both in the matter

Page 67

of determining the admissibility of spontaneous utterances, see Commonwealth v. Grant, 418 Mass. 76 , 81 (1994); Commonwealth v. Santiago, 437 Mass. at 624 (reversal warranted only when there is a clear case of improper exercise of discretion), and in the matter of assessing witness competency, see Commonwealth v. Whitehead, 379 Mass. 640 , 656 (1980); Commonwealth v. Gamache, 35 Mass. App. Ct. 805 , 806 (1994), we fail to discern any abuse of discretion in the admission of Michael's statements as spontaneous utterances. Indeed, much to the contrary, the judge's handling of the matter was careful, measured, and eminently reasonable.

Judgment affirmed.