Commonwealth v. Rafael Rivera.

• Court: Massachusetts Appeals Court
• Decided: May 22, 2023
• Docket: 22-P-0253
• Status: Unpublished

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

22-P-253

COMMONWEALTH

vs.

RAFAEL RIVERA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial, the defendant was convicted of

assault and battery by means of a dangerous weapon (a club) and

assault and battery on a household member.1 On appeal, he argues

that the trial judge erred in admitting the victim's statements

to a witness and a 911 operator as excited utterances, and that

the victim's grand jury testimony should have been excluded for

lack of sufficient corroborating evidence. We find no error,

and affirm.

1. Excited utterances. An out-of-court statement may be

admitted as an exception to the hearsay rule when it is made in

response to an "event sufficiently startling to render

inoperative the normal reflective thought processes of the

1 In violation of G. L. c. 265, §§ 13M (a) and 15A (b), respectively. observer," and is truly "a spontaneous reaction . . . and not

the result of reflective thought" (quotations and citation

omitted). Commonwealth v. Beatrice, 460 Mass. 255, 258 (2011).

See Mass. G. Evid. § 803(2) (2020). In deciding whether a

statement should be admitted as an excited utterance, a judge

may consider "whether the statement was made in the same

location as the startling event; the amount of time between the

startling event and the making of the statement; and the age,

spontaneity, and degree of excitement of the declarant."

Commonwealth v. Wilson, 94 Mass. App. Ct. 416, 421 (2018).

Here, the trial judge did not abuse his discretion in

admitting statements the victim made to a neighbor (who

testified at trial) and to a 911 operator.2 See Wilson, 94 Mass.

App. Ct. at 423. The neighbor testified that he was in an

industrial building with an open garage door when he saw the

victim come running toward him, covered in blood and screaming,

"[H]elp, someone's trying to kill me, help me mister." He

testified that she appeared to be very upset, heaving

convulsively, and breathing hard. He further testified that the

victim then told him that her boyfriend had beaten her with a

piece of furniture, and that she had escaped through a window

and run to the nearby building where the neighbor happened to

2 The judge ruled prior to trial to allow the statements in evidence.

2 be. The neighbor testified that the victim kept repeating that

her boyfriend was trying to kill her. Her demeanor during her

entire interaction with the neighbor, as well as her words

themselves, clearly suggested that she was still in the grip of

the startling event.3

Nor did the judge err in determining that the 911 call was

admissible as an excited utterance. The victim remained upset

and in tears as she spoke to a 911 operator on the neighbor's

cell phone, so much so that the operator had a difficult time

understanding her. See Commonwealth v. Sanchez, 96 Mass. App.

Ct. 1, 7 (2019) (frantic tone and tears during 911 call

indicated victim still under stress of startling event).

Although the 911 call lasted several minutes, the touchstone of

an excited utterance is the impact of the startling event on the

victim, not the length of time between the event and the

statement. See Wilson, 94 Mass. App. Ct. at 422 n.7. Nor does

the fact that the victim was no longer in the presence of her

attacker remove her statements from the realm of excited

utterances, when her words and demeanor indicated that she was

still under such extreme distress. Id. at 422 (startling event

need not be ongoing when declarant made statement). The

3 Indeed, the neighbor testified that the victim appeared to be in such fear that after her statements to him, he closed the garage door lest someone was still chasing her.

3 statements to both the neighbor and the 911 operator were

therefore properly admitted.

2. Grand jury testimony. The defendant contends that had

the victim's out-of-court statements been excluded, insufficient

corroborating evidence would have existed to allow the admission

of the victim's grand jury testimony as substantive evidence.4

See Commonwealth v. Clements, 436 Mass. 190, 192-193 (2002).

Since the statements were properly admitted as excited

utterances, it follows that there was no error in admitting the

victim's grand jury testimony.5

Judgments affirmed.

By the Court (Green, C.J., Wolohojian & Sullivan, JJ.6),

Clerk

Entered: May 22, 2023.

4 To the extent the defendant suggests that the trial evidence was legally insufficient to support his convictions, the argument is misplaced for the reasons explained in Commonwealth v. Belmer, 78 Mass. App. Ct. 62, 68 n.3 (2010). 5 We note that, even without the excited utterances, other

evidence at trial corroborated the victim's grand jury testimony, such as the neighbor's observations of the victim's demeanor when she first approached him, and police testimony that the defendant was found standing in front of the victim's apartment holding a broken furniture leg shortly after the victim's 911 call. 6 The panelists are listed in order of seniority.