COMMONWEALTH vs. ROY RAND.

HENRY, J. Following a jury trial in the Superior Court, the defendant, Roy Rand, was convicted of assault and battery in violation of G. L. c. 265, § 13A, and strangulation in violation of G. L. c. 265, § 15D. [Note 1] The principal question on appeal is whether it was error to admit in evidence the 911 call made by the

Page 759

defendant's girlfriend, Susan, [Note 2] or parts of that call, and the statements she made to the police officers who responded to the call. We conclude that while some of the statements were admissible as nontestimonial excited utterances, many were not. Because we are not convinced beyond a reasonable doubt that the evidence admitted against the defendant in violation of his right to confrontation -- under the Sixth Amendment to the United States Constitution [Note 3] and art. 12 of the Massachusetts Declaration of Rights -- did not contribute to his convictions, we reverse.

Background. Shortly after the defendant was arraigned, Susan stopped cooperating with the Commonwealth. Anticipating that Susan would not be available to testify at trial, the Commonwealth filed two motions in limine: one to admit Susan's statements made during her 911 call, and one to admit her statements made to the police officers who responded to her call. The defendant opposed both motions. The judge listened to the 911 call and ruled that he would admit the call in its entirety. Defense counsel started to object to the ruling and the judge interrupted, assuring him there was no need to object further and that "[a]ll of your rights are fully protected here."

In addition, the two responding police officers testified at a voir dire hearing. Officer John Connolly testified that while they were waiting for medical help to arrive, Susan explained to them what had happened. The officers spoke to Susan for "medical purposes because she was presenting with obvious injuries, and also because [they] didn't know where her alleged attacker was." Sergeant Philip Yee testified that the officers tried to speak with her initially "to find out if she was hurt and why [the police] were there." The motion judge, who also was the trial judge, ruled that they could testify about Susan's statements until she left her home to be transported in an ambulance, "but without any detail because [the motion judge] understood the officers to say there was no detail." The motion judge excluded testimony by the officers about any of Susan's statements in the ambulance or hospital.

Page 760

The jury could have found the following facts. The defendant and Susan had an off-and-on dating relationship for approximately five years. They had a child together and the defendant visited regularly.

On July 25, 2015, at approximately 12:45 a.m., Susan called 911. The jury heard the 911 call, which was approximately five minutes and twenty seconds long. [Note 4] The call started with Susan saying, "I need somebody to come to my house," and, sobbing, "My boyfriend just beat me up." The dispatcher asked whether the boyfriend was still present and dispatched police. She asked the caller's name and the name of her boyfriend. Susan named the defendant and said that he had left but she did not know what kind of car he was driving. The dispatcher announced on the police radio, "Boyfriend's no longer on scene. He fled in an unknown vehicle."

The dispatcher asked, "What exactly happened tonight?" Susan stated that her boyfriend had arrived at midnight and that her sister "was causing trouble and stuff like that." Susan stated that she instructed her boyfriend to remove her sister from the house, but he took her sister's side and "knocked [Susan] out a couple of times." The dispatcher then communicated with police officers. After the dispatcher finished, Susan added, "And then he punched me in the face."

The dispatcher asked Susan, "He punched you in the face?" When Susan confirmed this, the dispatcher immediately asked Susan if she needed an ambulance, and she answered, "I don't know." When asked if she was bleeding, Susan answered, "No. But my face is swollen." The dispatcher sent an ambulance.

When the dispatcher informed Susan that she had called an ambulance, Susan said that her sister left with her boyfriend "[a]fter he beat me up and stuff." The dispatcher then asked questions about when the boyfriend left, to which Susan replied, "Like two minutes ago, since I called you guys." [Note 5] The dispatcher next asked questions about Susan's residence. Susan then volunteered, "He tried to kill me."

Page 761

Two police officers arrived at Susan's home and found her on the telephone with the dispatcher. Susan did not seem to realize who they were, and the dispatcher had to tell her to hang up. The officers found Susan very upset, hysterical, and sobbing uncontrollably. Officer Connolly testified that he saw swelling on Susan's face and he noticed her eyes were bloodshot. Sergeant Yee noted that her eyes were red, bloodshot, and "veiny," although he did not observe facial swelling.

In the context of the judge's ruling that what Susan said at the apartment was admissible, the prosecutor asked the open-ended question, "And then what happened?" Sergeant Yee testified that they asked Susan "what's was going on, what happened" and why she needed them to respond. She responded that her boyfriend, the defendant, whom she identified as "Roy," had beaten her. When the officers asked how Roy beat her up, Susan said that he had punched her several times in the head and choked her with his knee, causing her to lose consciousness, hit the back of her head, and urinate on herself. When she regained consciousness, the defendant again hit her and choked her, this time with his hands. Susan also told the officers that her sister slapped her face two or three times. Susan complained of pain so Yee also called for an ambulance.

Officer Connolly testified next. He testified that when the officers saw Susan's injuries, Yee requested an ambulance. The prosecutor asked what Susan told the officers in the apartment. Connolly repeated Susan's statement that the defendant attacked her and all of the aforementioned details.

The jury saw photographs of Susan's injuries and heard testimony about them. The injuries to her face were consistent with her having been struck by a fist, arm, elbow, or object, "[s]omething more than a slap." The redness near her throat was consistent with a person's hands or other objects having been on her throat.

Susan had broken blood vessels in her eyes, which were consistent with strangulation rather than intoxication. At the hospital, she had urine on her pants and was hoarse. Incontinence, hoarseness, and lost consciousness are additional signs of a person having been strangled.

Discussion. 1. Standard of review. The defendant opposed the Commonwealth's motions in limine on the constitutional ground he raises on appeal. That was sufficient to preserve the issue. See Commonwealth v. Grady, 474 Mass. 715, 719 (2016) (defendant was not required to "object at trial to something that he . . . had

Page 762

previously sought to preclude on constitutional grounds"). [Note 6]

"With respect to preserved constitutional error, we must vacate the conviction unless we are satisfied that the error was harmless beyond a reasonable doubt." Commonwealth v. Wardsworth, 482 Mass. 454, 465 (2019). It is the Commonwealth's burden to show the error was harmless beyond a reasonable doubt. Commonwealth v. Tyree, 455 Mass. 676, 701 (2010). This standard "is not satisfied simply because the erroneously admitted evidence is cumulative of other properly admitted evidence." Commonwealth v. Wilson, 94 Mass. App. Ct. 416, 432 (2018). Instead, "[w]e consider several factors to determine whether the error was harmless: 'the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.'" Commonwealth v. Vardinski, 438 Mass. 444, 452 (2003), quoting Commonwealth v. DiBenedetto, 414 Mass. 37, 40 (1992), S.C., 427 Mass. 414 (1998). "We resolve all ambiguities and doubts in favor of the defendant." Vardinski, supra at 452-453.

2. Admissibility of Susan's statements. When the Commonwealth offers out-of-court statements made by a declarant who is not available to testify at trial, as here, there is a two-step inquiry: (1) whether the statements are admissible under the rules of evidence, typically an exception to the hearsay rule; and (2) whether admission of the statements violates the defendant's confrontation rights. Commonwealth v. Nesbitt, 452 Mass. 236, 243 (2008). Here, the defendant concedes that Susan's statements during the 911 call and to the officers in her home were excited utterances. Id. at 246. Accordingly, we turn to whether the admission of Susan's statements violated the defendant's confrontation rights.

Whether admission of Susan's statements during the 911 call and to the officers in her home violated the defendant's right to confront the witnesses against him depends on whether the statements

Page 763

were testimonial or nontestimonial. "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." Davis v. Washington, 547 U.S. 813, 822 (2006). [Note 7] If, however, there is no "ongoing emergency" and "the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution," the statements are testimonial. Id. "Testimonial statements are those made with the primary purpose of 'creating an out-of-court substitute for trial testimony.'" Wardsworth, 482 Mass. at 464, quoting Commonwealth v. Imbert, 479 Mass. 575, 580 (2018). "The existence of an ongoing emergency must be objectively assessed from the perspective of the parties to the interrogation at the time, not with the benefit of hindsight. If the information the parties knew at the time of the encounter would lead a reasonable person to believe that there was an emergency, even if that belief was later proved incorrect, that is sufficient for purposes of the Confrontation Clause." Commonwealth v. Beatrice, 460 Mass. 255, 259-260 (2011), quoting Michigan v. Bryant, 562 U.S. 344, 361 n.8 (2011). "'[A] conversation which begins as an interrogation to determine the need for emergency assistance' can 'evolve into testimonial statements.'" Bryant, supra at 365, quoting Davis, supra at 828. The Commonwealth bears the burden of proving the facts necessary to determination of admissibility by a preponderance of the evidence. Beatrice, supra at 259. The United States Supreme Court has included 911 calls within the rubric of police interrogation. Beatrice, 460 Mass. at 259 n.6. Also, a statement that the declarant volunteers can be testimonial. See Wilson, 94 Mass. App. Court. at 428.

Factors that help distinguish testimonial statements from nontestimonial statements include:

Page 764

"(1) whether the [declarant] was speaking about 'events as they were actually happening rather than describ[ing] past events'; (2) whether any reasonable listener would recognize that the [declarant] was facing an 'ongoing emergency'; (3) whether what was asked and answered was, viewed objectively, 'necessary to be able to resolve the present emergency, rather than simply to learn . . . what had happened in the past,' including whether it was necessary for [police] to know the identity of the alleged perpetrator; and (4) the 'level of formality' of the interview (emphasis in original)."

Commonwealth v. Galicia, 447 Mass. 737, 743-744 (2006), quoting Davis, 547 U.S. at 827. See Mass. G. Evid. Art. VIII, Introductory Note (a) (2019).

In addition, the Supreme Judicial Court, and we, have repeatedly held that "statements made during a 911 telephone call by an individual who was assaulted only a short time earlier and is seeking emergency police or medical assistance are not testimonial, even when some of those statements (including those that identify the perpetrator) are the result of questions by an agent of law enforcement who is attempting to resolve the emergency." Commonwealth v. Rodriguez, 90 Mass. App. Ct. 315, 323 (2016). However, where a 911 call delves into past events or the declarant's statements are not made for the purpose of resolving an ongoing emergency, the statements are testimonial. See Beatrice, 460 Mass. at 259-260; Commonwealth v. Simon, 456 Mass. 280, 300, cert. denied, 562 U.S. 874 (2010).

a. The 911 call. Parts of the 911 call here were admissible as nontestimonial statements and parts were not. The statements were interwoven, and the testimonial statements should not have been introduced in evidence.

The statements made during the 911 call to assess and respond to the emergency in this case were nontestimonial and admissible. The call started with a request for emergency assistance from a crying caller asking for help. The 911 dispatcher needed to determine the emergency, who was at the scene, and who the responding police officers might be dealing with, all to respond to the emergency. Accordingly, the following statements were admissible: "I need somebody to come to my house," "My boyfriend just beat me up," and the defendant's name. Those statements were not testimonial and admitting them into evidence was not error. See Rodriguez, 90 Mass. App. Ct. at 324. Susan's

Page 765

naming of the defendant at a time when she was seeking emergency help and police needed to know whom they might encounter also was not testimonial. See Beatrice, 460 Mass. at 263; Rodriguez, supra at 323.

Statements made in response to the dispatcher's asking, "What exactly happened tonight?" were testimonial. They were designed to elicit past events and are not covered by the emergency exception. It was error to admit them. [Note 8] See Simon, 456 Mass. at 300 ("Although much of the 911 call was not testimonial per se, five statements contained therein were testimonial per se because, viewed objectively, they would not have helped resolve the ongoing emergency or secure the crime scene"); Wilson, 94 Mass. App. Ct. at 427 (officer's request to victim for "rundown of exactly how it happened" was not in response to an ongoing emergency, and the resulting answer was testimonial). These included the narrative of how the evening developed and "he knocked me out a couple of times," as well as references to the defendant punching Susan in the face.

We note that the dispatcher's characterization of events to responding officers as "a domestic assault and battery" is inadmissible. While it is nontestimonial, as the dispatcher made the statement solely to assist the police in responding to the scene, this out-of-court statement is hearsay and inadmissible unless it is subject to an exception. See Commonwealth v. Purdy, 459 Mass. 442, 452 (2011) (out-of-court statement is hearsay, and ordinarily is not admissible, where it is offered to prove the truth of matter asserted therein). See also Mass. G. Evid. § 801(c) (2019). [Note 9]

The 911 call returned to a nontestimonial topic and those statements were admissible. Because of a testimonial statement that the defendant had punched Susan in the face, the dispatcher and Susan discussed whether she needed an ambulance. They also discussed that Susan's sister had left and was not on scene. "[Q]uestions and the victim's answers . . . concerned primarily with assessing the victim's medical condition and collecting as much information as possible to prepare first responders for what they would soon encounter" are not testimonial. Commonwealth v. Middlemiss, 465 Mass. 627, 636 (2013).

Page 766

At that point, Susan returned to describing what had happened that night, making testimonial statements. These included the testimonial statement that Susan's sister left with Susan's boyfriend "[a]fter he beat me up and stuff" and Susan's later volunteered statement that "[h]e tried to kill me." These statements, made as the police were arriving, "were not relevant to resolving the . . . emergency" and are not admissible. Simon, 456 Mass. at 300.

The defendant's argument that the 911 call was not admissible because Susan, the declarant, was not bleeding and did not ask for an ambulance is unavailing. The defendant is using hindsight to evaluate the call rather than the perspective of the parties to the call. See Wardsworth, 482 Mass. at 464; Beatrice, 460 Mass. at 259-260. Susan was sobbing and upset, she called when the defendant was still on scene, and she reported that she had suffered injury.

b. Statements made to the officers at the scene. When the police officers arrived at Susan's home, they knew that an ambulance was on the way, and once at the scene, Yee also called for an ambulance. Susan was hysterical and initially did not realize that the uniformed officers were there. At this point, there was no indication of a volatile scene. While Susan made statements that might have been helpful in focusing medical treatment, we are constrained by Beatrice, 460 Mass. at 260, to conclude, on the facts presented here, that once police arrived at Susan's apartment, there was not an ongoing medical emergency sufficient to permit admission of Susan's statements in evidence.

In Beatrice, the victim had "'just' been severely beaten by her boy friend . . . , but there [was] no suggestion that her injuries were serious or life threatening." [Note 10] 460 Mass. at 260. In that circumstance, "a reasonable person would believe there was an ongoing emergency only if there was a continuing risk to the victim," which the court concluded on those facts existed only if the assailant might resume the assault. Id. Here, the officers did not offer any testimony that once they arrived on scene, Susan's injuries appeared serious or life threatening. They asked, "[W]hat's was going on, what happened," and Susan's answers to their question were about what had happened in the past. Her statements were testimonial and should not have been admitted.

Page 767

See Commonwealth v. Gonsalves, 445 Mass. 1, 16-17 (2005), cert. denied, 548 U.S. 926 (2006) (where declarant was mobile and verbal, and had no obvious injuries, on record before court, her statements to officers at scene were not admissible). Contrast Bryant, 562 U.S. at 374-375 (declarant was mortally wounded when he made statements); Middlemiss, 465 Mass. at 630, 635-636 (declarant had been shot, was pleading for help, and died); Nesbitt, 452 Mass. at 240, 247 (declarant suffered over twenty stab wounds, pleaded for help, and died). [Note 11]

c. Harmless error analysis. We are not "satisfied beyond a reasonable doubt that the [inadmissible] evidence did not have an effect on the jury and did not contribute to the jury's verdicts." [Note 12] Tyree, 455 Mass. at 701. The evidence that should have been excluded contained important details of the assault and surrounding circumstances. For example, during the testimonial parts of the 911 call, the victim explained how the argument had occurred, stated that the defendant "knocked me out a couple of times," that the defendant punched her in the face, and that "[h]e tried to kill me." Similarly, the only statements by Susan that the defendant strangled her came in the form of inadmissible testimonial statements offered by the officers repeating what Susan had told them on the night in question. There was evidence of some physical injuries consistent with strangulation but also evidence of a lack of injuries to Susan's neck. The emergency room doctor did not conclude that Susan had been strangled or diagnose her with any other "neck injury." In fact, the officer assigned to photograph Susan's injuries the next day did not photograph her neck because he did not see any injuries to it.

Reviewing the entire record, the information contained only in the testimonial statements was a focus of the Commonwealth's case and closing argument and shaped defense counsel's trial strategy as well. As in Wilson, 94 Mass. App. Ct. at 433, "the

Page 768

erroneously admitted evidence was not collateral or tangential -- it went to the heart of the case." Accordingly, the judgments are reversed, and the verdicts are set aside.

So ordered.

Page 769

Appendix.

The text of 911 call is set forth below. The italicized portions of the text should have been excluded. Remarks to "aside" are to responding police officers or ambulance.

Susan: "Hello?"

Dispatcher: "Braintree police dispatcher Wood, this call is recorded."

Susan: "Yes, I need somebody to come to my house."

Dispatcher: "Okay, where are you?"

Susan: "[street address]."

Dispatcher: "All right, hold on, I need you to take a deep breath for me, okay? What's your address?"

Susan: "[street address]."

Dispatcher: "[street address]? What's going on there?"

Susan: "My boyfriend just beat me up."

Dispatcher: [Aside] "A-7, [street address], female just got beat up by her boyfriend."

Dispatcher: "Are you there right now with him?"

Susan: "No, he left."

Dispatcher: "Okay, just stay on the phone with me, okay? I've got units headed your way. What's your name, honey?"

Susan: "[Susan]."

Dispatcher: "What's your boyfriend's name?"

Susan: "Roy Rand."

Dispatcher: "All right, hold on, I'm going to have to go –- go a little slow. What's his first name?"

Susan: "Roy."

Dispatcher: "Roy, R-O-Y?"

Susan: "Yes."

Dispatcher: "And spell his last name for me."

Susan: "R-A-N-D."

Dispatcher: "Okay."

Susan: "He's from Brockton."

Dispatcher: "He's from Brockton? What kind of car, what kind of car does he have?"

Susan: "I don't know."

Dispatcher: "All right, hold on one second, okay? What exactly happened tonight?"

Susan: "He came home at twelve, and then, my sister was here and she was causing trouble and stuff like that. And I blamed, will you take her out of this house because we can't have her here. And then he was just taking sides with her and stuff like that and then I talked about it and he knocked me out a couple of times."

Dispatcher: [Aside] "[street address]. Boyfriend's no longer on scene. He fled in an unknown vehicle."

Susan: "And then he punched me in the face."

Dispatcher: "He punched you in the face?"

Susan: "Yes."

Dispatcher: "Okay. Do you need an ambulance, honey?"

Susan: "I don't know."

Page 770

Dispatcher: "Are you bleeding?"

Susan: "No. But my face is swollen."

Dispatcher: "All right, hold on one second, okay?"

Susan: "Yeah."

Dispatcher: [Aside] "[Inaudible] [street address] in Braintree, for a domestic assault and battery."

Dispatcher: "Okay, what I'm going to have to do is have an ambulance come, just so they can check you out, okay? I want to make sure that everything's okay. All right? But I'm going to have you stay on the phone with me until I have officers that get there, okay?"

Susan: "Yeah, and my sister left, too, with him."

Dispatcher: "Your sister left with him?"

Susan: "Yes."

Dispatcher: "Okay."

Susan: "After he beat me up and stuff."

Dispatcher: "How long ago did he leave?"

Susan: "Like two minutes ago, since I called you guys."

Dispatcher: "How long ago did he leave your house?"

Susan: "Since I called, since I was able to get my phone."

Dispatcher: "Okay, so he left a little while ago? Is there an apartment number, or is it a single-family home?"

Susan: "Three-family."

Dispatcher: "Okay, what apartment are you in?"

Susan: "Uh, one. [inaudible] They both left together."

Dispatcher: "What apartment do you live in, honey?"

Susan: "One."

Dispatcher: "You live in apartment one?"

Susan: "Yeah."

Dispatcher: "Okay, hold on one second."

Dispatcher: [Aside] "Units to [street address], the female's going to be in apartment one. She's by herself."

Susan: "He tried to kill me."

Dispatcher: [Aside] "Roger."

Dispatcher: "All right. Can you go to your door and see the police officers?"

Susan: "Yeah."

Dispatcher: "Can you go let them in?"

Susan: "I'm in here."

Dispatcher: "Okay. Do you see the police cars?"

Susan: "Yes, I see lights."

Dispatcher: "You see lights? Can you yell to them so they know where you are?"

Susan: "Yeah, I see them."

Dispatcher: "Are you with them?"

Susan: "Yeah."

Dispatcher: [Aside] "A-1-7, were you able to find her? Roger, an X-ray's en route."

Dispatcher: "All right, go talk to them, okay, honey?

Susan: "Now where did he go?"

Dispatcher: "Go talk to the police officers, okay?"

Susan: "Okay."

Page 771

Dispatcher: "All right. Bye-bye."