Appeals Court (April 11, 2006)
This case illustrates the application of Crawford and Gonsalves where a 5 year old child's spontaneous utterances to a police officer were not testimonial and were admissible.
There is no requirement that a judge conduct a voir dire examination of the spontaneous utterance declarant to determine the declarant's competency. The reliability of spontaneous utterances derives primarily from the circumstances in which they are uttered rather than from the declarant.
The defendant and his brother engaged in a fight inside their home while the defendant's five year old son was present. The brother's girlfriend called 911, reporting a gun being shot inside the home, and the police responded. Upon arrival, the police spoke briefly to the brother's girlfriend, heard two people inside the house yelling at each other and observed the five year old run outside and then back into the house. The police established a perimeter around the home, announced themselves, and ordered those inside to come outside; the two brothers emerged and were handcuffed. The defendant told police that the gun was inside the home on a table. When one of the officer's entered the home, she saw the five year old "very excited, very upset" and "rambling." When she asked the child if anyone else was in the home, the child gave a number of statements indicating that the defendant had shot the gun. The child was unavailable at the trial and the court admitted the child's statements as spontaneous utterances.
The Appeals Court held that the statements were admissible because they were neither testimonial per se nor testimonial in fact. The Court held that the officer's questions to the child were posed for emergency purposes to secure a volatile scene, an exception to the Gonsalves testimonial per se test. In its reasoning, the court explained that the child referred to his father by three different names which objectively led the police officers to believe that others could still be present inside the home with weapons. In addition, the child's statements were not the product of law enforcement interrogation because they were not directly responsive to the questions asked by the officer.
The court also held that the statement was not testimonial in fact because the child was five years old and had just witnessed "a bloody fracas in his home involving his father and uncle, where he heard a gun being discharged. . . It is almost inconceivable that, moments after such an event, a child in [his] condition - - described as essentially frantic - - could have spoken in contemplation of a future legal proceeding."
The defendant also argued that prior to admitting the unavailable declarant's out-of-court statements as spontaneous utterances, the court was obligated to conduct a voir dire examination of the declarant to determine his competency due to his young age and "low verbal skills." The Appeals Court disagreed. "[T]he reliability of such [spontaneous utterance] statements derives primarily from the circumstances in which they are uttered rather than from the declarant. Given this, we discern no requirement that a judge in the ordinary course must conduct a voir dire examination of the declarant."