Commonwealth v. Rodriguez

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15-P-131 Appeals Court

COMMONWEALTH vs. CARLOS RODRIGUEZ.

No. 15-P-131.

Hampden. March 18, 2016. - September 22, 2016.

Present: Milkey, Agnes, & Maldonado, JJ.

Assault and Battery. Evidence, Spontaneous utterance, Hearsay,
Unavailable witness. Constitutional Law, Confrontation of
witnesses. Practice, Criminal, Hearsay, Confrontation of
witnesses. Witness, Unavailability.

Complaint received and sworn to in the Springfield Division
of the District Court Department on March 7, 2014.

A motion in limine was heard by Robert A. Gordon, J., and
the case was tried before William P. Hadley, J.

S. Anders Smith for the defendant.
Thomas R. Worger (Amal Bala, Assistant District Attorney,
with him) for the Commonwealth.

AGNES, J. The defendant, Carlos Rodriguez, was convicted

on August 14, 2014, of assault and battery following a two-day

jury trial. He was sentenced to a term of six months in a house

of correction. The Commonwealth's case was based principally on
2

the testimony of West Springfield police Officer Paulina Hannah,

the second officer to respond to the scene of a domestic

violence incident. She testified to certain statements made to

her by the victim, who did not testify at the trial. On appeal,

the defendant argues that the trial judge improperly admitted

those statements because they did not fall within any exception

to the hearsay rule, and they violated his independent

constitutional right under the Sixth Amendment to the United

States Constitution and art. 12 of the Massachusetts Declaration

of Rights to confront the witnesses against him.

We agree with the judges1 below that the statements in

question made by the victim to Officer Hannah were admissible as

excited utterances. However, we agree with the defendant that

those initial statements were testimonial, and thus were subject

to the confrontation clause. Finally, we conclude that despite

the testimonial character of those statements, the defendant's

confrontation rights were not violated and the statements were

properly admitted, because the victim was unavailable to testify

at trial and the defendant had an adequate prior opportunity to

cross-examine her at a pretrial dangerousness hearing.

1
The question whether the victim's statements to Officer
Hannah were testimonial was the subject of rulings by two
judges: the motion judge who acted on the defendant's pretrial
motion in limine and the trial judge who acted on the
defendant's objection at trial.
3

Background. Prior to trial, the defendant filed a motion

in limine to exclude all of the statements made by the victim to

the first police officer at the scene, Officer Robert Wise, and

to Officer Hannah. Following an evidentiary hearing, at which

both officers testified, the motion judge ruled that all of the

statements were excited utterances and not subject to the rule

against hearsay. However, the motion judge ruled that the

statements made to Officer Wise were inadmissible under the

confrontation clause because they were made in response to his

questions and therefore were testimonial. For the same reason,

the motion judge also ruled that all of the statements that

followed Officer Hannah's request to "tell [her] exactly what

happened" were testimonial and not admissible through the

testimony of Officer Hannah. However, the motion judge ruled

that the initial statements the victim made to Officer Hannah

when she first entered the home (the statements after the

conversation with Officer Wise ended and until Officer Hannah

asked the victim to tell her what happened) were admissible, as

they were neither "testimonial per se" nor testimonial in fact.

At trial, the jury were warranted in finding the following

facts. On the afternoon of October 14, 2013, Officer Wise was

dispatched to a residence to investigate a report of a domestic

disturbance. Upon arriving, Officer Wise met the victim in the

hallway of the apartment building and observed her to be "very
4

upset." The victim had "[t]ears running down her face," "red

eyes," and "disheveled" hair, and her "[s]hirt was torn."

Officer Wise also observed marks on her arms as well as the

front and side of her neck. He did not see the defendant on the

premises. Officer Wise did not testify to any statements made

by the victim.

Shortly after Officer Wise arrived, he was joined by

Officer Hannah. The victim left her conversation with Officer

Wise and "went running right over to Officer Hannah." The

victim, who was "crying hysterically [and in a] [v]ery

disheveled [condition]," gave Officer Hannah a "big hug." The

victim felt more comfortable with Officer Hannah because they

had known one another for years, and they could speak to each

other in Spanish. After giving Officer Hannah a hug and calling

her by a specific term of endearment,2 the victim told Officer

Hannah that "Carlos had done this to her." The victim told

Officer Hannah that Carlos had grabbed her by the hair and

dragged her down the hallway. The victim made motions to

demonstrate how he had grabbed her. At that point the defendant

objected on the ground that the admission of the statements made

by the victim to Officer Hannah violated his rights under the

2
That term is repeatedly transcribed in the record as
"mommy," but we take this as a reference to the term "mami,"
which Officer Hannah testified is a term of endearment in the
Hispanic culture that is similar to the term "sweetie" or
"honey."
5

confrontation clause. A lengthy sidebar discussion ensued. The

judge initially sustained the objection. The judge then

conducted a voir dire hearing, at which Officers Wise and Hannah

testified. After the hearing, the judge overruled the

objection, stating that he agreed with the motion judge's

ruling.3

Officer Hannah then resumed her testimony regarding the

initial statements the victim made to her. The victim had

disclosed to Officer Hannah that the defendant had done this to

her, and that he had grabbed her by her hair and dragged her

across the floor. Officer Hannah also testified that the victim

said the defendant had "grabbed her by the neck" and she "was

having a hard time breathing because [the defendant] was

squeezing her neck."

As a result of a prior hearing where the victim had

asserted her rights under the Fifth Amendment to the United

States Constitution and, as found by the motion judge, was no

longer available to testify, the victim did not testify at the

trial. Whether the victim had a basis to assert the privilege

is not an issue on appeal. The defendant presented no

3
The voir dire concerned the foundational requirements of
the excited utterance exception, namely, temporal proximity. In
finding that the foundational requirements were met and in
admitting the victim's initial statements to Officer Hannah, the
trial judge implicitly accepted the motion judge's finding that
those statements were not testimonial, and did not conduct an
independent confrontation clause analysis.
6

witnesses, but defense counsel read into the record portions of

the victim's prior sworn testimony from a pretrial dangerousness

hearing pursuant to G. L. c. 276, § 58A. At that hearing, the

victim testified that she did not remember what happened on

October 14, 2013; that the injury to her hand had happened

before that day; that the defendant never grabbed her by the

hair, pinned her down, or choked her; and that she never sought

a restraining order against the defendant. The victim also

testified that she had been under the influence of prescription

medications and alcohol on that day.

In his closing argument, the defendant relied heavily on

the victim's prior sworn testimony from the dangerousness

hearing as evidence that her statements made to the police

officers at the scene were not credible. The Commonwealth, in

its closing, urged the jury to rely instead on the victim's

statements that were made contemporaneous to the event and were

the subject of Officer Hannah's testimony. The jury convicted

the defendant of assault and battery.

Discussion. a. Admissibility as excited utterances. A

spontaneous or 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

spontaneous reaction to the occurrence or event and not the
7

result of reflective thought.'" Commonwealth v. Santiago, 437

Mass. 620, 623 (2002), quoting from 2 McCormick, Evidence § 272,

at 204 (5th ed. 1999). See Mass. G. Evid. § 803(2) (2016).4 We

review a judge's decision to admit or exclude evidence based on

whether it falls within an exception to the hearsay rule, such

as the excited utterance exception, under the abuse of

discretion standard. "We defer to the judge's exercise of

discretion unless the judge has made '"a clear error of judgment

in weighing" the factors relevant to the decision, . . . such

that the decision falls outside the range of reasonable

alternatives' (citations omitted)." Commonwealth v. Alleyne,

474 Mass. 771, 779 (2016), quoting from L.L. v. Commonwealth,

470 Mass. 169, 185 n.27 (2014).

Here, the trial judge heard evidence, during the voir dire

hearing, that Officer Hannah arrived on the scene within five to

ten minutes of the radio call dispatching officers to the

residence. Prior trial testimony revealed that when Officer

4
Factors of importance to the analysis include "the degree
of excitement displayed by the person making the statement[];
whether the statement is made at the place where the traumatic
event occurred or at another place; the temporal closeness of
the statement to the act it explains; and the degree of
spontaneity [shown by the declarant]." Commonwealth v. Joyner,
55 Mass. App. Ct. 412, 414–415 (2002) (citations and footnote
omitted). "[T]he statements need not be strictly
contemporaneous with the exciting cause; they may be subsequent
to it, provided there has not been time for the exciting
influence to lose its sway and to be dissipated." Commonwealth
v. McLaughlin, 364 Mass. 211, 223 (1973), quoting from Rocco v.
Boston-Leader, Inc., 340 Mass. 195, 197 (1960).
8

Hannah arrived, the victim was "crying hysterically,"

"disheveled," and "trembling." Her hair was in disarray, her

eyes were red, her shirt was torn, and she had visible bruises

on her body. The temporal closeness of the statements to the

startling event (being physically beaten), and the evidence of

the victim's condition as upset, in distress, and highly

emotional, provided the trial judge with a firm basis for his

conclusion that her initial statements to Officer Hannah were

the product of the ordeal she had just experienced and not the

result of conscious reflection. See Commonwealth v. Robinson,

451 Mass. 672, 680-681 (2008).

b. Admissibility under the confrontation clause. The more

difficult question is whether the initial statements to Officer

Hannah were testimonial within the meaning of the confrontation

clause.5 The reasoning of the judges below was grounded in the

framework set forth in Commonwealth v. Gonsalves, 445 Mass. 1,

17-18 (2005). The judges reasoned that those statements were

not "testimonial per se" because Officer Hannah did not pose any

questions and they were made "voluntarily and without prodding."6

5
It is unnecessary for us to address whether it was error
to exclude as testimonial the victim's statement to Officer Wise
and other statements she made to Officer Hannah, which were also
deemed excited utterances, because their exclusion is not
challenged on appeal.
6
"Statements made in response to emergency questioning by
law enforcement to secure a volatile scene or determine the need
9

The judges also considered whether the statements were

testimonial in fact.7 The judges considered whether a reasonable

person in the victim's position would have anticipated that her

spontaneous statements to Officer Hannah would be used against

the defendant in investigating and prosecuting a criminal case.

The motion judge, whose reasoning was followed by the trial

judge, determined, "based upon the relationship between [the

victim] and Officer Hannah and the circumstances that resulted

in unsolicited statements," that a reasonable person would not.

The motion judge also considered it important that the victim

"viewed Officer Hannah as a person to provide her comfort,

compassion, and protection based upon her immediate emotional

and physical condition without concern for a prospective

criminal prosecution."8

for or provide medical care are not per se testimonial. The
same is true for out-of-court statements made in response to
questions from people who are not law enforcement agents, and
statements offered spontaneously, without prompting, regardless
of who heard them." Gonsalves, supra at 10-11.
7
A statement that is not testimonial per se may
nevertheless be testimonial in fact if the court determines that
"the declarant knew or should have known [it] might be used to
investigate or prosecute an accused. . . . The proper inquiry
is 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." Gonsalves, supra at 12-
13.
8
The factual findings made by the motion judge and the
trial judge regarding the statements by and the conduct of the
two police officers who responded to the scene in this case are
10

The confrontation clause establishes as a bedrock principle

of constitutional law the common law's guarantee, subject only

to limited exceptions, that in a criminal case the accused has

the right to meet the witnesses against him face-to-face. See

Commonwealth v. Bergstrom, 402 Mass. 534, 544-545 (1988);

Commonwealth v. Dorisca, 88 Mass. App. Ct. 776, 776-777 (2016).

See also Commonwealth v. Mulgrave, 472 Mass. 170, 180 (2015).9

This right of a person accused of a crime is also protected by

the Sixth Amendment. See Crawford v. Washington, 541 U.S. 36,

50-51 (2004). Over the past twelve years, since the United

States Supreme Court untangled the evidentiary exceptions to the

hearsay rule and the confrontation clause,10 the Supreme Court

and other Federal and State courts around the country have

attempted to define as precisely as possible the test for

classifying an out-of-court statement by a nontestifying witness

entitled to substantial deference. Our task is to make an
independent determination whether the judges correctly applied
constitutional principles to the facts found. See Commonwealth
v. Pena, 462 Mass. 183, 192 n.10 (2012). The victim did not
testify before the motion judge or the trial judge. Thus, we
are in as good a position as those judges to determine the
understanding and purpose of a reasonable person in the shoes of
the victim at the time she spoke to the police. See
Commonwealth v. Haley, 413 Mass. 770, 773 (1992).
9
See generally Herrmann & Speer, Facing the Accuser:
Ancient and Medieval Precursors of the Confrontation Clause, 34
Va. J. Intl. L. 481 (1994).
10
The one exception to the independence between exceptions
to the rule against hearsay and the confrontation clause is the
dying declaration. See Crawford, supra at 56 n.6.
11

as testimonial or nontestimonial. See, e.g., Mass. G. Evid.

Art. VIII, Introductory Note (2016) (collecting cases).

In Davis v. Washington, 547 U.S. 813 (2006), the Court

recognized that the statements involved in Crawford --

statements made during a police interrogation by an individual

who had received Miranda warnings and was in police custody --

easily qualified as testimonial because any reasonable person

would expect that such statements would be used or available for

use at a trial. Davis, supra at 822, 826-827. The Davis Court

added precision to the test for determining whether a statement

is testimonial by stating that judges should consider the

function that the police are performing when the statements are

made -- the so-called primary purpose test:

"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.
They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that
the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal
prosecution."

Id. at 822.

In Davis, the Court applied that test to two fact patterns

involving domestic violence. In the lead case from the State of

Washington, the victim of a domestic violence attack called 911

and told the police that she had just been physically assaulted

in her home by the defendant whom she identified and reported
12

had just left the scene. Id. at 817-818. In concluding that

those statements by the victim were not testimonial, the Court

relied on three considerations: the statements related events

to the police as they were happening; the statements were made

in an attempt to resolve an ongoing emergency; and the

statements made were necessary to resolve the present emergency.

Id. at 827.

In the companion case from Indiana,11 on the other hand, the

Court concluded that the victim's statements were testimonial

because when they were made the emergency had ended, there was

no immediate threat to the victim, and the primary purpose of

the questioning was to learn what had happened. Id. at 829-832.

Even though the victim was not at a police station when the

statements were made, the Court reasoned that the statements

11
In the companion case, the police responded to the
victim's home based on a report of a "domestic disturbance."
Davis, supra at 819. The victim was alone on the front porch
and appeared to be frightened. Ibid. Once inside, the police
observed broken glass on the floor from a damaged gas heater
that had flames coming out of it and a man, later identified as
the defendant, in the kitchen. Ibid. The defendant, who
identified himself as the victim's husband, told the police that
he and the victim had argued, but that "everything was fine,"
and that the argument had not been physical. Ibid. The
defendant then became "angry" and had to be restrained in order
to permit the police to speak privately with the victim. Id. at
819-820. The victim gave the police an oral account of what had
happened and then wrote the following statement: "Broke our
Furnace & shoved me down on the floor into the broken glass.
Hit me in the chest and threw me down. Broke our lamps & phone.
Tore up my van where I couldn't leave the house. Attacked my
daughter." Id. at 820.
13

were made in the context of an investigation into past criminal

conduct, and not in an effort to resolve an ongoing emergency.

Ibid.

The primary purpose test was applied again in Michigan v.

Bryant, 562 U.S. 344 (2011). There, the Court had occasion to

apply the test in the setting of statements made to the police

by the victim of a gunshot wound to the abdomen, who was lying

on the ground in a gasoline station parking lot. Id. at 349.

The victim, who was in great pain and spoke with difficulty,

responded to police questions about what had happened, who had

shot him, and where the shooting had occurred. Ibid. Within

five to ten minutes when emergency medical services arrived, the

police stopped speaking with the victim. Ibid. The victim was

transported to the hospital and died shortly thereafter. Ibid.

In reversing the Michigan Supreme Court, which had ruled that

the victim's statements were testimonial despite their

admissibility as excited utterances, the Court stressed the need

for an objective assessment of the circumstances and the purpose

that a reasonable party in the shoes of the declarant had when

the statements were made. Id. at 350-351, 360.

In concluding that the statements made by the victim were

not testimonial, the Bryant Court offered the following:

"We distinguished the statements in Davis from the
testimonial statements in Crawford on several grounds,
including that the victim in Davis was 'speaking about
14

events as they were actually happening, rather than
"describ[ing] past events,"' that there was an ongoing
emergency, that the 'elicited statements were necessary to
be able to resolve the present emergency,' and that the
statements were not formal. In Hammon [v. Indiana, the
companion case in Davis], on the other hand, we held that,
'[i]t is entirely clear from the circumstances that the
interrogation was part of an investigation into possibl[e]
criminal past conduct.' There was 'no emergency in
progress.' The officer questioning [the victim] 'was not
seeking to determine . . . "what is happening," but rather
"what happened."' It was 'formal enough' that the police
interrogated [the victim] in a room separate from her
husband where, 'some time after the events described were
over,' she 'deliberately recounted, in response to police
questioning, how potentially criminal past events began and
progressed.' Because her statements 'were neither a cry
for help nor the provision of information enabling officers
immediately to end a threatening situation,' we held that
they were testimonial."

Bryant, supra at 356-357 (citations omitted).12

The primary purpose test has been applied by the Supreme

Judicial Court in a number of cases in a manner that is

consistent with the Crawford-Davis-Bryant trilogy.13 For

12
In Bryant, the Court also identified factors to consider
when determining whether an emergency exists: "(1) whether an
armed assailant poses a substantial threat to the public at
large; (2) the type of weapon that has been employed; (3) the
severity of the victim's injuries; (4) the formality of the
interrogation; and (5) the involved parties' statements and
actions. Additional considerations include whether the victim's
safety is at substantial imminent risk." Commonwealth v. Smith,
460 Mass. 385, 392-393 (2011) (citations omitted).
13
Until the plurality opinion in Williams v. Illinois, 132
S. Ct. 2221 (2012), the Supreme Judicial Court had indicated
that the jurisprudence of the confrontation clause under the
Sixth Amendment to the United States Constitution was
"coextensive" with that under art. 12 of the Massachusetts
Declaration of Rights. Commonwealth v. Barbosa, 457 Mass. 773,
780 n.7 (2010). Whether that remains so is an open question.
15

example, 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. See, e.g., Commonwealth v. Galicia, 447 Mass. 737,

745 (2006); Commonwealth v. Nesbitt, 452 Mass. 236, 247-248

(2008); Commonwealth v. Beatrice, 460 Mass. 255, 259-261 (2011);

Commonwealth v. Middlemiss, 465 Mass. 627, 635-636 (2013). See

also United States v. Brito, 427 F.3d 53, 61-62 (1st Cir. 2005),

cert denied, 548 U.S. 926 (2006). However, even in the case of

a 911 telephone call initiated by the victim of a crime to deal

with an ongoing emergency, some statements made during the

course of the conversation may be classified as testimonial.

See Commonwealth v. Simon, 456 Mass. 280, 300 (2010) ("The

victim's two statements [made during 911 call] describing the

shooting in great detail related to past events; they were not

relevant to resolving the medical emergency, securing the crime

scene, or protecting emergency personnel responding to the

See Commonwealth v. Tassone, 468 Mass. 391, 404 n.3 (2014).
However, the Supreme Judicial Court consistently has followed
the primary purpose test as enunciated in Davis and Bryant,
which we apply in this case, subject only to the idiosyncratic
distinction between statements that are testimonial per se and
testimonial in fact.
16

call"). In another case, all of the statements made by a crime

victim during a 911 telephone call were classified as

testimonial because they were made in circumstances in which

there was no ongoing emergency. See Commonwealth v. Lao, 450

Mass. 215, 225-226 (2007).

The Supreme Judicial Court also has reviewed cases in which

statements were made to the police by victims at the scene of a

crime in order to determine whether they should be classified as

testimonial notwithstanding their character as excited

utterances. In Commonwealth v. Burgess, 450 Mass. 422, 425,

430-431 (2008), the court explained that based on the facts of

the case -- an officer had responded to a 911 hang-up call,

heard what appeared to be an argument in progress at the home,

and observed a person (later identified as the victim) who

appeared to be in distress -- the victim's response ("No, it's

not") in reply to the officer's question ("if everything was

okay") was not testimonial. "In these circumstances, the

officer's query and the victim's response were part of an

attempt by the police to comprehend and deal with what appeared

to be a volatile situation." Id. at 431.14 However, the court

14
In Burgess, the court described the victim's statement as
neither "testimonial per se," because even though in response to
police questioning, it was made in the context of an ongoing
emergency, nor "testimonial in fact," because "a reasonable
person in the victim's position would not anticipate that his
response regarding whether the general situation was 'okay'
17

described the statements made by the victim following the

initial question by the police officer as testimonial. Ibid.

"[T]he officer's subsequent questions and the victim's responses

were testimonial per se, as it was then visible to the officer

that the defendant was not behaving dangerously; the victim was

providing more extended answers to the officer's inquiries; and

it was reasonable to conclude that his responses could

subsequently be used in a prosecution of the defendant." Ibid.15

Similarly, in Galicia, 447 Mass. at 740, the police arrived at

would be used against a specific defendant in investigating and
prosecuting a crime." Burgess, supra at 431.
15
See Commonwealth v. DeOliveira, 447 Mass. 56, 60-61, 64-
65 (2006) (statements made by six year old child to physician at
hospital about where she had been unlawfully touched were held
not testimonial because they reasonably would be viewed by child
as part of medical examination and not in contemplation of
prosecution); Commonwealth v. Tang, 66 Mass. App. Ct. 53, 54-55,
59-61 (2006) (five year old child's answers to questions put to
him at scene by police officers were not testimonial because
they "were posed on an emergency basis while the police were
securing a volatile scene," and it was not plausible that the
young child "could have spoken in contemplation of a future
legal proceeding"); Commonwealth v. Patterson, 79 Mass. App. Ct.
316, 320 (2011) (child's statement made without police
questioning, "as the officers walked into a volatile and
unstable scene of domestic disturbance," was not testimonial;
"[t]here [was] nothing to suggest that the statement was made
for any purpose other than to secure aid, let alone that the
five year old child had in mind that the statement would or
could be used to prove some fact at a future criminal trial");
Commonwealth v. Figueroa, 79 Mass. App. Ct. 389, 397-399 (2011)
(statements made by eighty-six year old victim, who suffered
from dementia and was a patient in nursing home, were not
testimonial because they "were related to medical care even
though they were made in an effort to determine what had
occurred").
18

the victim's home five minutes after she telephoned 911 to

report that she was being beaten by her husband. The court

explained that statements made by the victim during the 911 call

were not testimonial because she was reporting an ongoing

emergency, but her statements made to the police at her home,

minutes later, were testimonial:

"Viewed objectively, the victim's statements to officers
occurred separate and apart from the danger she sought to
avert, both temporally and physically. [The responding
officer] testified at the motion in limine hearing that,
when he arrived, he 'determined that the scene was safe.'
By the time the testifying officers had arrived, the
assault had ended and urgency had subsided. While the
victim may have been 'upset' and visibly 'tearful,' we
cannot say that the 'primary purpose' of her statements,
objectively viewed, was to 'enable police assistance to
meet an ongoing emergency.'"

Galicia, 447 Mass. at 745-746. See Commonwealth v. Foley, 445

Mass. 1001, 1002 (2005).

In the present case, the characteristics of the victim's

statements to Officer Hannah that are relevant to a

determination of whether those statements are testimonial are as

follows: (1) they were spontaneous, not the product of police

questioning, and made while the victim was upset and shaken; (2)

they were made after the commission of a crime, when the

defendant was no longer on the scene, and after a brief

conversation with a different police officer; (3) they were not

necessary to enable the police to understand or control an

ongoing emergency or to obtain medical care for the victim; and
19

(4) they related exclusively to past events, and were not made

to enable the police to secure the scene or to apprehend the

defendant.

With regard to the first characteristic, in Davis, the

Court indicated that our focus must be on the declarant's

statement, and explained that the question whether a statement

is testimonial cannot be answered simply on the basis of whether

it was procured by police questioning. Davis, 547 U.S. at 822

n.1 ("The Framers were no more willing to exempt from cross-

examination volunteered testimony or answers to open-ended

questions than they were to exempt answers to detailed

interrogation"). Even if the spontaneous quality of her

statements and her condition support the view that the

statements were made in an atmosphere of informality,16 that is

16
An understanding of the relationship between the hearsay
exception for excited utterances and the confrontation clause,
consistent with the analysis set forth in the Crawford-Davis-
Bryant trilogy of cases, is that excited utterances are neither
automatically exempt from the requirements of the confrontation
clause based on their spontaneous nature nor automatically
subject to the confrontation clause as out-of-court statements.
The United States Court of Appeals for the First Circuit
reviewed the debate prior to Davis over how best to harmonize
the two doctrines in Brito, 427 F.3d at 60-61. The court noted
that some courts have taken the view that excited utterances can
never be testimonial, while others "discount the excited nature
of the utterance and focus instead on the declarant's
objectively reasonable expectations." Id. at 60. The Brito
court rejected both approaches in favor of the view that the two
inquiries are "distinct but symbiotic":
20

not a decisive factor. As the court observed in Gonsalves,

"[i]f testimonial statements were limited to formal, solemnized,

recorded accounts, Crawford would be a recipe to circumvent the

confrontation clause by encouraging law enforcement personnel to

take elaborate statements informally, as far from the court and

the station house as possible." Gonsalves, 445 Mass. at 8.

We think the second, third, and fourth characteristics of

the victim's statements lead ineluctably to the conclusion that

they are testimonial, just as portions of the victim's 911 call

in Simon, and the victim's statements made within five minutes

of her 911 call in Galicia, were deemed testimonial. A

reasonable person standing in the shoes of the victim in this

case would have understood, we think, that the statements she

made to a uniformed police officer -- even one she knew as a

friend and trusted -- who responded to her home where a domestic

"[W]e conclude that the excited utterance and testimonial
hearsay inquiries are separate, but related. While both
inquiries look to the surrounding circumstances to make
determinations about the declarant's mindset at the time of
the statement, their focal points are different. The
excited utterance inquiry focuses on whether the declarant
was under the stress of a startling event. The testimonial
hearsay inquiry focuses on whether a reasonable declarant,
similarly situated (that is, excited by the stress of a
startling event), would have had the capacity to appreciate
the legal ramifications of her statement."

Id. at 60-61. The Sixth Circuit Court of Appeals has cited the
Brito analysis with approval. See United States v. Hadley, 431
F.3d 484, 504-505 (6th Cir. 2005) (opinion of Rosen, D.J.).
21

violence incident had just occurred, would be used in the

investigation and prosecution of the defendant.

c. Adequate opportunity to cross-examine. A testimonial

statement by a nontestifying witness will nonetheless be

admissible if, on another occasion, the opposing party had an

adequate opportunity to cross-examine the witness. See

Crawford, 541 U.S. at 53-54; Gonsalves, 445 Mass. at 3. It is

undisputed in this case that the victim, who was the declarant,

was unavailable at trial because she had invoked her privilege

against self-incrimination. The question, then, is whether the

defendant was afforded an adequate opportunity to cross-examine

her on the admitted hearsay statements at the pretrial

dangerousness hearing. See Hurley, 455 Mass. at 66.

In order to make such a determination regarding a

defendant's prior opportunity to cross-examine a witness who

does not testify, but, as in this case, whose testimonial

hearsay statements made during a pretrial dangerousness hearing

conducted under G. L. c. 276, § 58A, are admitted at the

defendant's trial, we must decide "whether the defendant's

motive to cross-examine at the earlier proceeding [was] similar

to his motive to cross-examine at the current trial." Id. at

61, quoting from Commonwealth v. Roberio, 440 Mass. 245, 253

(2003). In the present case, a transcript of the pretrial

dangerousness hearing is part of the record on appeal. The
22

victim testified on direct examination that on the day in

question, she was at home with the defendant, her boyfriend.

When asked what happened that day, she testified that she had

drank a large quantity of alcohol and had taken medications, and

had no memory of the events. The witness acknowledged that she

knew Officer Hannah, and remembered that Officer Hannah was at

her home that day. On cross-examination, the victim testified,

without qualification or equivocation, that on that day the

defendant did not grab her by her hair, choke her, drag her

across the floor, or pin her down on the ground with his knees

to her chest. She added that she could only speak and write in

Spanish. With regard to a written statement attributed to her

and bearing what appeared to be her signature (marked only for

identification), she denied writing it and stated that no one

explained to her what it was. She testified that she was not

afraid of the defendant and had never obtained a restraining

order against him. Finally, on redirect examination, the

witness clarified her testimony on cross-examination and stated

that she did not remember the events of the day in question.

We agree with the Commonwealth that in this case, the

defendant's motive in cross-examining the victim at the

dangerousness hearing was similar to what his motive would have

been had she testified at trial. In view of the statements

attributed to the victim by the police and her subsequent
23

testimony recanting some things and expressing a lack of memory

of other things, the defendant's motive at the dangerousness

hearing was to depict her as a credible witness just as it would

have been had she testified at the trial. See Commonwealth v.

Housewright, 470 Mass. 665, 677-678 (2015). In a case such as

this, in order for the victim's out-of-court statements to be

admissible, it was not necessary for the Commonwealth to

demonstrate at the dangerousness hearing that defense counsel

covered every single detail of the witness's out-of-court

statements that were admitted at trial. See Commonwealth v.

Sena, 441 Mass. 822, 833 (2004). The confrontation clause does

not require that the earlier opportunity to cross-examine meet

any particular standard of effectiveness. See Commonwealth v.

Cong Duc Le, 444 Mass. 431, 438 (2005) ("the witness's memory

loss about prior events would not impermissibly undermine the

opportunity to cross-examine the witness").17

Conclusion. The "primary purpose" test developed by the

Supreme Court in Davis and Bryant, and applied by the

Massachusetts appellate decisions cited in this opinion, for

determining whether an out-of-court statement is testimonial

17
The defendant's reliance on then Justice Liacos's dissent
in Commonwealth v. Canon, 373 Mass. 494, 511-513 (1977), is
misplaced. The basis for the dissent was the view that the
motive of a civil plaintiff, who later becomes a criminal
defendant, to cross-examine a witness during the civil case was
markedly different from the defendant's motive to cross-examine
if the witness had testified at the criminal trial.
24

will undoubtedly continue to evolve as the law moves forward.

What endures, however, is the insight expressed by Justice

Scalia, who authored Crawford, that notwithstanding the concern

over trustworthiness that underlies all exceptions to the

hearsay rule, including excited utterances, "[d]ispensing with

confrontation because testimony is obviously reliable is akin to

dispensing with jury trial because a defendant is obviously

guilty. This is not what the Sixth Amendment prescribes."

Crawford, 541 U.S. at 62. The statements made by the victim in

this case to Officer Hannah were properly ruled as falling

within the excited utterance exception to the hearsay rule, but

nonetheless were made in circumstances in which a reasonable

person in the victim's position would have appreciated that they

would have legal consequences, including the arrest and

prosecution of the defendant. However, the defendant's

opportunity to cross-examine the victim at the pretrial

dangerousness hearing was adequate and served to render her

initial out-of-court statements admissible at trial.

Judgment affirmed.