Commonwealth v. Aylis H. Dryden.
This text of Commonwealth v. Aylis H. Dryden. (Commonwealth v. Aylis H. Dryden.) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-877
COMMONWEALTH
vs.
AYLIS H. DRYDEN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Boston Municipal Court, the
defendant was convicted of assault and battery and reckless
endangerment of a child. On appeal, the defendant contends that
the trial judge erred in admitting in evidence two statements of
the victim, who did not testify at trial, thereby violating the
defendant's constitutional right to confront witnesses against
him. After review, we conclude that the two statements were
properly admitted under the excited utterance exception to the
rule against hearsay and that his right to confrontation was not
violated. We affirm.
Background. At about 5:15 P.M. on September 21, 2019,
police received a 911 call; the female caller reported that a man wearing red pants was beating a child on the street. Within
fifteen minutes, police received another 911 call; the male
caller reported that a group of people were chasing the man in
the red pants. A responding officer wearing a body-worn camera
approached the defendant, who was sitting on some steps
shirtless and wearing red pants; he was sweating profusely.
Standing a few feet away was a ten year old boy, looking scared
and upset; he was crying and shaking, gasping for breath, and
his shirt collar had been ripped with the shirt torn down the
middle, exposing his chest. The defendant summoned the boy and
told him to get away from the police. The boy reluctantly
walked toward the defendant, saying, "Please don't hurt me.
Please don't hurt me." As the officer spoke with the defendant,
another officer took the boy aside and tried to console him.
Crying heavily, the boy told the officer that the defendant had
punched and choked him. The defendant was arrested and the boy
was taken to a hospital.
Discussion. Just prior to trial, the Commonwealth moved in
limine to admit a statement of the victim in evidence: "Please
don't hurt me. Please don't hurt me." The prosecutor argued
that the statement was an excited utterance and relevant to "the
elements of the crime," and showing the victim's "mindset." The
defendant argued that the statement was ambiguous, irrelevant
and not subject to cross-examination. As the statement was
2 captured on video, the judge watched the video footage to make
his ruling. The judge allowed the Commonwealth's motion.
Later, during the course of trial, defense counsel cross-
examined a police officer as to his observations of the victim
on scene. Subsequently, the prosecutor argued to the judge that
the line of questioning suggested that the victim never
disclosed to anyone what happened, when in fact the victim did
tell another police officer on scene that the defendant had
punched and choked him. The prosecutor then sought to introduce
that statement as an excited utterance. After voir dire of the
witness, the judge allowed the statement to be admitted.
On appeal, the defendant argues that the court's rulings,
allowing these two statements of the victim in evidence, were
prejudicial error. We disagree. There was no abuse of
discretion in the judge finding each statement was admissible as
an excited utterance. The excited utterance exception to the
rule against hearsay makes admissible hearsay statements in
which the declarant did not have the time or forethought "to
contrive or fabricate the remark." Commonwealth v. Baldwin, 476
Mass. 1041, 1042 (2017), quoting Commonwealth v. Zagranski, 408
Mass. 278, 285 (1990). An excited utterance is admissible if
"(1) there is an occurrence or event 'sufficiently startling to
render inoperative the normal reflective thought processes of
the observer,' and (2) if the declarant's statement was 'a
3 spontaneous reaction to the occurrence or event and not the
result of reflective thought.'" Commonwealth v. Santiago, 437
Mass. 620, 623 (2002), quoting 2 McCormick, Evidence § 272, at
204 (5th ed. 1999). Whether a statement qualifies as an excited
utterance is a matter left to the sound discretion of the trial
judge. Commonwealth v. Wilson, 94 Mass. App. Ct. 416, 423
(2018).
Here, the judge had before him evidence that the child
victim had sustained an assault and battery just preceding his
statements. The event was so notable that it caused bystanders
to call the police. The victim's statements were made
spontaneously, not in response to direct questioning, and within
minutes of the assault. Furthermore, the victim was in visible
emotional distress while he made the statements, crying
throughout, as well as physical distress, as he gasped to catch
his breath. The judge was well within his discretion in
determining that each statement qualified as an excited
utterance. See Baldwin, 476 Mass. at 1042 (discussing factors
to be considered when determining whether statement qualifies as
excited utterance including declarant's age and demeanor, degree
of spontaneity of statement, geographic and temporal proximity
to startling event).
Nor did the admission of the statements violate the
defendant's confrontation rights, because the statements were
4 not testimonial in nature. See Commonwealth v. Beatrice, 460
Mass. 255, 258 (2011) (confrontation clause bars admission in
evidence of testimonial statements of witness who does not
testify at trial unless witness was unavailable and there was
prior opportunity to cross-examine). Testimonial statements are
those made for the primary purpose of creating an out-of-court
substitute for trial testimony. See Commonwealth v. Hart, 493
Mass. 130, 144 (2023). To begin with, to the extent the first
statement's admission is challenged on this ground, as a
forward-looking statement, its primary purpose was not "to
establish or prove past events potentially relevant to later
criminal prosecution." Davis v. Washington, 547 U.S. 813, 822
(2006). Consequently, it was not testimonial. Id. Likewise,
the second statement's purpose was to address an ongoing
emergency. Thus, it, too was nontestimonial. Michigan v.
Bryant, 562 U.S. 344, 358 (2011) (statements made to police to
meet an ongoing emergency were "not procured with a primary
purpose of creating an out-of-court substitute for trial
testimony" and thus were not testimonial). Both statements were
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