Supreme Judicial Court (September 29, 2009)

The prior recorded testimony of an unavailable declarant's c. 276, §58A "dangerousness hearing" testimony does not violate the Sixth Amendment or Art. 12 since the defendant had an adequate prior opportunity for cross-examination.

The admission, however, of testimonial excited utterances which consist of prior inconsistent statements of that unavailable witness will only be admitted if there was a prior adequate opportunity to cross-examine that declarant about the facts described in the excited utterances.

The defendant was convicted in the Superior Court of assault and battery of one victim (Bovio), but acquitted of assault and battery of another victim (Kluge). Both victims died before trial, and the Commonwealth offered in evidence portions of prior recorded testimony of Bovio at the defendant's c. 276, §58A dangerousness hearing, as well as excited utterances made to the police by Bovio. The defendant appealed arguing, among other things, that the admission of the prior recorded testimony of Bovio, and the admission of the excited utterances through the police officer violated his right to confrontation under the 6th Amendment and Article 12. The SJC transferred the case on its own motion to address the defendant's claims in light of Crawford v. Washington, 541 U.S. 36 (2004). The SJC affirmed the conviction.

Admission of Prior Recorded Testimony:
The SJC held that the defendant's confrontation rights were not violated. In Crawford, the United States Supreme Court held that testimonial out-of-court statements made by a declarant who is not participating at trial are inadmissible under the confrontation clause of the Sixth Amendment unless the declarant is unavailable to testify, and the defendant had an adequate prior opportunity to cross-examine the declarant. A defendant has an adequate prior opportunity to cross-examine an unavailable witness when: (1) the declarant was under oath at the prior proceeding; (2) the defendant was represented by counsel at the prior proceeding; (3) the prior proceeding was "conducted before a judicial tribunal, equipped to provide a judicial record of the hearings"; and (4) the prior proceeding was "addressed to substantially the same issues as in the current proceeding," and the defendant had "reasonable opportunity and similar motivation on the prior occasion for cross-examination of the declarant." The defendant argued that the dangerousness hearing was focused on the issue of the defendant's dangerousness, not his commission of the assault and battery against Bovio, and therefore, he had neither a reasonable opportunity nor a similar motivation to cross-examine Bovio. The SJC disagreed and held that although the cross-examination of Bovio at trial (if she were alive) may have been different from, and better than, her cross-examination at the dangerousness hearing, the defendant had an adequate opportunity to cross-examine Bovio at the prior hearing, and therefore the use of that testimony at trial did not violate the confrontation clause.

Admission of Excited Utterances:
At trial, in ruling on the Commonwealth's motion in limine, the judge, over the defendant's objection, ruled that the oral statements made by Bovio after the police arrived were admissible as excited utterances. The Commonwealth must satisfy two hurdles for the admission of excited utterances. First, it must establish that the statement meets the criteria of an applicable hearsay exception under the common-law rules of evidence (here, the excited utterance exception). Second, unless the declarant is a Commonwealth witness at trial, it must establish that the admission of the statement would not violate the confrontation clause. On appeal, the Commonwealth conceded that the statements made by Bovio to the police at the scene of the incident were testimonial (no ongoing emergency because the police knew the defendant left the scene). Because these hearsay statements were testimonial, their admission in evidence is only proper if defense counsel had an adequate prior opportunity for cross-examination. The SJC held for the first time in this case that with respect to testimonial excited utterances, a prior adequate opportunity for cross-examination exists if the defendant had an adequate prior opportunity to cross-examine the declarant about the facts described in the excited utterance itself.

In this case, Bovio's testimonial excited utterances made to the police officer were inconsistent in four respects with Bovio's prior recorded testimony at the dangerousness hearing. In California v. Green, 399 U.S. 149 (1970), the U.S. Supreme Court held that prior inconsistent statements of a witness may be admitted in evidence for the truth of the matter asserted when the witness testified differently at trial provided the witness was present at trial to explain or repudiate the prior out-of-court statement. Just as with a prior consistent statement, the confrontation clause requires that the defendant have an opportunity on cross-examination to question the declarant who made a testimonial excited utterance as to the truth value of his/her prior statement.

Here, the excited utterances were offered in evidence at the dangerousness hearing through the testimony of the police officer, who testified after Bovio had completed her testimony. While defense counsel did not cross-examine Bovio at the prior hearing as to the excited utterances, the facts described in the excited utterances had been elicited during Bovio's prior testimony (with four exceptions where certain facts were in the excited utterance testimony, but not in Bovio's testimony, creating four inconsistencies), and therefore defense counsel had an adequate opportunity to challenge the accuracy and truthfulness of those facts that were not inconsistent. However, the SJC held that the defendant's right of confrontation under the Sixth Amendment was violated by the admission of the portions of Bovio's excited utterances that spoke of the four exceptions because the defendant did not have an adequate opportunity to cross-examine Bovio with respect to their accuracy and truth. However, the SJC also concluded that the error was harmless beyond a reasonable doubt, and affirmed the conviction.