Commonwealth v. Tang

845 N.E.2d 407, 66 Mass. App. Ct. 53, 2006 Mass. App. LEXIS 405
CourtMassachusetts Appeals Court
DecidedApril 11, 2006
DocketNo. 04-P-964
StatusPublished
Cited by9 cases

This text of 845 N.E.2d 407 (Commonwealth v. Tang) 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.

Bluebook
Commonwealth v. Tang, 845 N.E.2d 407, 66 Mass. App. Ct. 53, 2006 Mass. App. LEXIS 405 (Mass. Ct. App. 2006).

Opinion

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.

[54]*54On 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(6), and of various firearm-related offenses.1

The defendant shared a single-family house in Framingham with his five year old son Michael,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 [55]*55the 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 blood3 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 base[56]*56ment 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.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 [57]*57counsel 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.

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Bluebook (online)
845 N.E.2d 407, 66 Mass. App. Ct. 53, 2006 Mass. App. LEXIS 405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-tang-massappct-2006.