-: Morning
-: (indistinct)ready for the first case
-: SJC-13047, Commonwealth v. Roy C Rand.
-: Good morning, Ms. Griffin.
-: Morning.
If it may please the court,
My name is Geraldine Griffin.
I represent Mr. Rand.
Your honors, the issues on appeal here today
have to do with the confrontation clause.
The defendant's confrontation rights were violated
in this case when the Commonwealth was permitted to admit,
over Mr. Rand's objection,
statements made by the victim in the case in a 911 call
and two responding officers at her home
following the call.
This error was not harmless beyond a reasonable doubt,
and therefore Mr. Rand's conviction should be reversed.
In this case, your honors,
the victim of this domestic incident was unavailable.
She had asserted her fifth amendment right not to testify.
As you are aware,
when a victim or any witness is unavailable,
-: Counsel, can I stop you for a minute?
You're referring to this as a domestic incident.
Wasn't she strangled and knocked unconscious
and strangled to the point where she urinated
and had severe facial swelling?
It's not really an incident, is it?
-: I suppose that's fair to say it was domestic,
report of a domestic assault.
-: Okay.
Thank you.
-: As your honors are aware,
when a witness is unavailable
and the defendant has had no prior opportunity to
cross examine the witness,
the court must go through a two step process
before admitting her hearsay statements.
The first is whether the statements fit
within an exception to the hearsay rule.
And the second is whether the statements are testimonial.
In this case, the statements were arguably excited
utterances.
However, they were testimonial.
So, it did not satisfy the second portion of the test.
The test that the court is to apply
is the primary purpose test from Davis vs. Washington.
That test states that statements are only non testimonial
if within the context of police questioning,
if the police questioning,
the primary purpose for the police questioning
was to resolve an ongoing emergency.
And there are a number of factors that come into play there.
-: Counsel, if I can interrupt you on this one.
There were two sets that you're talking about.
You're talking about the 911
and you're also talking about the statements
that were made to the police that responded on scene.
Let's start with the 911 transmission.
When do you contend the question and answer
between the dispatcher and the caller went
from non testimonial to testimonial?
Is there a line of demarcation that you can point us to
and say it was when the dispatcher asked this question
and elicited these answers.
That it went from testimonial to...
-: Yes, your honor.
I would contend that it's at line 12
where the dispatcher has asked her
are you there right now with him?
And she says, no, he left.
At this point,
and if you look at the case law, it's very clear.
If a defendant has left the scene
and there was no longer any danger or
apparent danger to the victim,
that is the line when it starts to
become looking more testimony.
-: Now, what do you say about justice Cipher's?
First point to you though,
this was a an arguably savage beating
and there are all types of other things that are emergency
aside from whether or not the perpetrator
might still be there.
Like if they need a medical response.
So how is the person the dispatcher is
supposed to inform what to respond with
without asking questions to elicit that type of information?
-: Well, first of all
the dispatcher could ask whatever she wants.
If this is not a case about what dispatchers can ask
and can't ask?
This is a question about what can be admitted,
when the defendant has had no prior opportunity
to cross examine that witness.
So the dispatcher can ask her whatever she wants
-: But it's two part.
It's not only what the dispatcher asks.
It's also what the person responds.
So to the extent that we're also talking
about what she responds with,
what happens if that's used to inform
what the response ought to be.
Why is that testimonial?
-: If there were questions and answers having to do
with determining the need for medical care
and the degree to which the person was injured.
That's one thing I agree.
The dispatcher does not ask anything about the victim's
medical condition until almost halfway through the call.
-: Counsel, counsel.
I assumed you've listened to the tape, right?
So, you know, the victim is pretty much unable to
answer many questions and pretty much hysterical
or crying or in pain.
So what kind of questions, you know
what should a dispatcher do in those circumstances?
Are there a prescribed set of questions they should ask?
That would differentiate that?
What exactly did the dispatcher do that you say
should not be admitted?
And is it the question or the answer you're arguing with?
-: The dispatcher didn't do anything wrong.
But I'm saying that now,
when we're talking about whether these are testimonial
or not?
We have to look at the call
and objectively discern whether the operator believed
reasonably believes that there was an ongoing emergency.
The only way we can do that is
by looking at this conversation.
This operator, if you and I did listen to the tape
and the victim, I would challenge the description of her
being hysterical.
She is clearly upset.
She's crying...
-: Hysterical is the wrong word you are right.
-: Very quietly talking,
hard to understand because she's crying.
Again dispatcher can ask whatever she wants.
But we need to discern whether the operator
reasonably believed there was an ongoing emergency?
The operator does not ask her about her medical condition
until many, many lines into this call.
The operator is concerned with finding out
who the boyfriend is and where he is from.
I am not blaming her for that.
-: Ms. Griffin, if I could interrupt you for a moment.
You recognize in your brief at one point
as has this court for,
I don't know seven years now,
that an ongoing emergency is a factor
perhaps even the most important factor
in determining whether or not the statement is testimonial.
It is not the be all and end all.
The task is not whether the primary purpose
of the interrogation is to respond to an ongoing emergency.
That is not the test.
The test is whether the primary purpose
looking at all the circumstances,
is whether or not
this would constitute a substitute for trial testimony?
In fact, in Michigan vs Bryant, we learn
that we of course look at what the interrogator says.
But ultimately it's from the perspective
of the article at the clown.
Now, it doesn't take long listening to that tape.
And by the way, Sergeant Hughs describes her as hysterical.
But it doesn't take long,
listening to that tape to think that
the primary purpose of this victim statement to the police
is not to create a substitute for trial testimony.
And what I'd really want to hone in on here on is
beyond the 911 call.
This is an incredibly unique situation.
Because she's still on the phone.
When the police come sort of not even cognizant
that the police are there.
And we actually,
from the 911 call have a feel
for what it was like
during the conversation with the police.
So when you applied the test
that United States Supreme court used
that we've used
for many years now,
where there is lack of formality
the nature of the article,
a declarance
attitude and presentation indicate that this is testimonial.
-: Well, first of all, your honor
I would push back a little bit
on your assessment of the importance
of the ongoing emergency.
In David versus Washington.
They specifically state that in order for
and this is again
the Commonwealth's burden to prove it's non testimonial.
They state that statement is non testimonial,
when the primary purpose is to
resolve or to meet or address...
-: That's basically what we said in Gonzalez too.
It's just that the life changed since David versus...
-: In Beatrice your honor,
in Beatrice, this court said
in order for there to be non testimonial statements
there must be the primary purpose must be to
there must be an ongoing emergency.
-: And we've said that not the case so many times now
since Beatrice it's come up in words, work
it's come up in me.
-: I disagree your Honor.
I disagree.
-: Well what about this.
We've said many many times
that cognate provisions of the declaration of rights
do not provide enhanced constitutional protections
when dealing with the confrontation clause,
other than in the face to face circumstances
or in a to show me DNA testing circumstances.
So the doctrine that we're applying
in addition to all our cases,
talking about the primary purpose is to create a substitute
for trial testimony.
Our cases talk, look to Michigan versus Brian.
Your brief recognizes
that the test you're arguing is not the law.
-: I have to disagree your honor.
And even in Michigan vs Bryant,
the whole focus of the analysis in that case,
is on the danger that is being posed by
the armed perpetrator.
-: It talks about the formality and lack of formality.
And the line is something like an emergency is a factor
perhaps even the most important factor.
But it is a factor.
-: Okay, well, we can talk about the other factors...
-: Well, I just don't understand.
You disagree with what?
You disagree that the primary purpose is only to respond
to an ongoing emergency?
-: I think that's what the case law shows.
If you look at the facts of all of the cases from this court
and the Supreme court on this issue
the focus is on the ongoing emergency.
-: When you say that that's the test
and that that's what the Supreme court says.
How do you reconcile that with the Supreme court saying
that's not the test.
That the ongoing emergency is a factor
the most important factor,
but the test is where the primary purpose
is to create a substitute for trial testimony.
I don't understand how you can just change the test.
-: I don't think I'm changing the test.
I'm using the test.
I understand that the broader issue is,
are they trying to create out of court testimony?
That is the broader issue.
But in looking at that in the context of 911 calls
and officers responding to the scene.
They look at, is there a threat to the victim?
Is there a threat to the officers?
Is there a threat to the public,
such that we can say that in this situation,
the police are not acting as investigators.
They're acting to resolve the threat.
Whether that is a defendant is still on the scene,
like in Beatrice
or in Galicia
or in Davis.
In Davis and Galicia in fact,
the court is very persuaded by the fact that
the assault is actually still happening
while the victim is on the phone.
In Beatrice the assault has just ended,
but the defendant is in the next apartment over.
And that's a huge part of the reasoning of the case.
My point is,
that there is this focus
on what is happening at the moment.
That's why the word ongoing is so important.
Is the defendant armed?
Is the defendant still at the scene?
And in this situation we have here,
the defendant has left.
The operator clearly believes...
-: And how do we know?
I mean, hindsight's always easy, right?
So we've got her report.
And again, she is shaken at a minimum
and she says he's left with her sister.
Which suggests they're going to come back.
Right?
Or at least
there's some concern that they're going to return.
Right?
That's one of the reasons they're asking about the car.
Right?
What car is he driving?
Right?
That's part of the phone call with the dispatcher.
What car is he driving?
How's he left?
Cause the police who are coming there
and it's fluid.
Right?
-: Well, your honor, I have to completely disagree.
-: Go ahead, that's your job.
-: The fact that he left,
this is entirely speculative.
She said he left.
-: Well, no, because you're assuming
he has left and gone forever.
She said he's left with her sister
and the dispatcher goes
what car is he driving?
Cause the police are gonna obviously want to
the police want to know if he's in the vicinity, right?
Because they want to make sure if he's there,
they know he's there.
So they're not surprised, right?
-: The fact that he may have come back,
of course that's a possibility, but...
-: But that's what I'm talking about,
is that there's uncertainty here
and that's why I'm trying to get back to Justice
George's question about where the line of demarcation is?
Because I think you have a loser on the dispatcher,
but at some point the police have moved
into an investigatory mode
and I'm trying to figure out when.
You believe everything.
Even the call.
I don't know why she's staying on the phone.
Why she's sending an ambulance.
Why she's, you know, asking questions about the person
unless she's the dispatcher's concerned
there's an ongoing emergency
and this doesn't seem like a victim who's setting up
somebody.
She's frightened and shaken at a minimum.
-: Well, the dispatcher, if I may
the dispatcher doesn't even relay the defendant's name
to the responding officers.
-: Yes she does.
-: I do not believe that she does your Honor
-: She relates the address of the apartment number.
-: That's the boyfriend.
Well, yeah, of course.
But I'm saying that if they're so concerned about Mr. Rand
and that he may have a record
or he may be a violent person...
-: Because they're responding to what is a domestic incident
or a domestic altercation.
And those are very dangerous for police officers.
So there's concern about that.
We're getting so into the details of what the police
and what the dispatcher were thinking,
when really isn't our focus on the victim at this point
and how she's preparing her tests,
what she's saying.
If the focus isn't on the question.
Should it be, it should be on the responses.
And whether the victim thinks
or the target of the violence thinks
that she's preparing something for trial.
-: It's both, your honor.
And part of the problem is that police officers
act as first responders.
So they have often times mixed motives.
But that's why we have to look at
what happened in this case to try to discern
what they were thinking?
The officers in this case
did not even look through the apartment
to see if Mr. Rand was still there.
There is no concern about a volatile scene
that they may be attacked.
There's no threat that he's going to return.
I would urge you to look at the case law.
There is consistently,
if the defendant has left the scene
and there's no risk to return,
he's not armed.
There is no speculating going on.
That, Oh he might come back.
The only time that comes up, even marginally
is in Beatrice.
And that's because the defendant is in the next apartment
over and the caller uses the present tense to say
please come right now.
He is packing his stuff.
Please come before he leaves.
Every other case,
if the defendant has left,
the emergency has ended.
-: Okay you want us to adopt the categorical.
You want us to adopt a categorical rule,
that if someone calls a dispatcher
and says the defendant has left,
the emergency is over?
No matter what?
-: If there are no other circumstances to which you can look.
Lets say he might be,
he made a threat to return.
There's even a case.
I think it's Wilson.
Where the guy did threaten to return.
He said, I'll be back in 15 minutes to kill you.
It was still testimonial in that case.
That was on scene questioning.
But in that case,
they still said it was testimonial.
Because the scene was secure.
There was no threat at that point.
So I would just urge you to look at the precedent
and compare it to the facts of this case.
Thank you your honor.
-: Thank you.
Okay, Attorney Monahan.
-: May I please the court.
Assistant district attorney Megan Monahan
on behalf of the Commonwealth.
It's important in this case to consider
the circumstances that the victim was facing
as pretty much talked about already this morning.
It's 12:45 at night.
She has just been severely beaten by her boyfriend.
Strangled to the point
that she has lost consciousness twice.
And she has lost control of her bladder.
She's calling 911 asking,
please somebody come to my house.
She is alone with her three-year-old daughter.
The defendant has just left moments earlier with her sister.
The victim doesn't know whether he's going to return,
whether he's outside the door,
just outside the property or around the block.
it is a volatile...
-: Counsel can you articulate a proper test for us?
-: Yes, your honor.
The test would be,
whether the primary purpose of the victim's statements
were an out of court substitute?
And that would be considering many factors
including the surrounding circumstances,
the primary purpose of the interrogators questioning,
the primary purpose of
or the motives of the victim statements,
our renal person in the victims place.
Because this is an objective inquiry.
The formality of the interview
and whether there is an existing, ongoing emergency.
-: Can I ask you Justice George's question?
Because I agree with you on the 911 call.
But the police,
how many police show up there and he is not there.
Aren't we in investigatory mode very quickly
and testimonial mode once the police show up there,
and he's not there and they've secured the scene?
-: Your honor.
So two officers arrived, Sergeant Ian and officer Connolly
and they arrived within minutes of the 911 call
within minutes of the attack.
And yes, investigators, police officers have dual roles.
They have a care-taking function
and as well as they are investigators.
So there are mixed motives.
And you can see that at times in the testimony
when the officer say we were there to see what happened.
And we were also there to see
if the victim was okay?
We were there because medical welfare,
to see the series of events.
So the Commonwealth acknowledges there's mixed motives
but what's important for determining
whether a statement the victim gave
to the officers is the specific questioning
and the officer's concerns at that moment.
Because if we look at the specific questions
I would urge the court
that this is a concern of a medical emergency.
Sergeant Hugh says, what happened?
And the victim provides an incredibly high level statement.
She says, just, I was punched in the face,
elbowed in the face and choked.
And I believe maybe hit in the face a couple of times.
But it was that very high level.
And Sergeant Hugh hears choked.
And his response is,
when you say choked
what does that mean?
And she puts her hands to her neck.
And then he follows up and says,
did you lose consciousness?
Yes.
Did you lose control of your bladder?
Yes.
Those questions are assessing the seriousness
of her injuries.
Particularly where strangulation injuries,
there is a concern that the victims airways
could close at any moment.
And so those are...
-: Attorney Monahan if you don't mind
I'd like to interrupt you with one question.
The concern that I have in this goes back
to your opposing counsel's point.
Officer Hugh for whatever he's asking,
he's not a medical provider.
So whether it's I have a headache,
I have a sprain
or the more specific things
that he was being told.
He's going to call an ambulance.
He's not going to administer aid.
He's not going to start giving treatment.
So whether it's the most benign complaint
or the most serious description
the response is going to be the same.
I'm going to call an ambulance.
So all of those questions
aren't those investigatory
and not really toward addressing any kind
of medical emergency.
Because the response is going to be the same.
He's not a doctor.
He's not a paramedic
-: Your honor no.
I would suggest in the circumstances
if we just changed, because Hindsight is 2020
so that you changed the factual scenario,
where prior to the paramedics arriving,
her airways did close up and she lost consciousness.
Sergeant Hugh would have had to report to the paramedics
what she said.
So it was imperative on the officers arriving
to understand the extent of her injuries.
Where there was a concern of losing consciousness
or trouble breathing.
So that he can then relay it to the paramedics.
But just because you know
the victim did not lose consciousness here,
did not have trouble breathing
that doesn't negate the motives of the officer's questioning
at that time.
-: Thank you.
-: You're welcome.
Thank you.
-: Isn't that?
Isn't the truth.
First of all, it's you are right Michigan versus Brian
talks about the perspective of the interrogator
being a factor in ultimately
determining what we need to determine
which is from the perspective of the adequate declarant
objectively speaking,
reasonable adequate declarant
with the primary purpose be for the purpose
of creating a substitute for trial testimony.
But the reality is,
just as George's was just addressing the reality is
that the police are there with mixed mode.
They do not walk to that front door saying,
okay I am going to compartmentalize my mind
and do no investigation.
I am not going to think about a prosecution.
The reality is that there's mixed motive
and it well may be,
that even the victim here as upset as we hear her
on the 911 call,
may even have mixed motives as well.
And I think it's,
sort of if you listen and think about this whole thing.
Unrealistic to think the police don't have
some aspect of investigation in mind.
-: No and I acknowledged that likely there are mixed motives.
You can see that in the general testimony of the officers
when they say
we're there to see what happened,
we're there to see if she's okay
if she needs medical attention.
So if we were going to take it then from the victim's
perspective of what at that point is she saying.
A reasonable person in her shoes.
Again, she has just been severely beaten.
She has asked for help.
She's in fear.
She's afraid to even leave the apartment.
And a reasonable person in her perspective,
at that point,
is just looking for help.
It's just looking for the resolve these injuries to
understand what's going on.
And so cannot say that a reasonable person
in her shoes would expect that her statements
at that moment were going to be used
as an out of court substitute for testimony.
Now, when we get to say the ambulance in the hospital,
where she provides a very detailed account of what happened
including that the attack started in the bathroom.
And then she was dragged to the bedroom
where she then provides the order of the injuries.
That's where I think a reasonable person would start
expecting that these statements are being used
for building a case against the defendant
-: That was Judge Broussard he was very careful,
excellent trial judge.
That's where he drew the line, isn't it?
-: Yes.
The judge drew the line.
Justice Broussard drew the line at the meeting
the apartment in the ambulance.
I would even say your honor that
if all those statements that we've been discussing
that the officers inquired,
whether the injuries
and the loss of consciousness and urination
those statements all came either before
or as the paramedics arrived.
And there wasn't much conversation
as the paramedics were treating.
So we can even draw that line a little closer
to the medical attention.
-: Let's take the defendant,
take the appellant's claim here
which is, the defendant left.
I think the testimony might've been something like
a couple of minutes before the 911 call
and the police arrived,
while she was still on the phone within a number of minutes
but the police are there at that moment
and she's going to be taken away in an ambulance.
So if an emergency means that
the defendant's going to come back
and threaten the victim and the police,
you know that could always be true.
So, you know,
emergency is not to be in an end.
As a matter of fact in Bishkek versus Brian
it says Davis should not be taken to imply
that the existence or nonexistence of an ongoing emergency
is dispositive of the testimonial inquiry.
But nonetheless, it's an important fact absolutely.
And here, at least in the sense of
the imminent threat from the defendant
to the police officers and to the victim.
Is that really paramount right at that moment?
-: At the moment that the officers have arrived.
And I believe it was Sergeant Hugh's testimony
that he stepped only a few feet in
because he was not sure what he was entering into.
But it was a small apartment.
And so I would say at that point,
the scene does appear secure
and unless the defendant returned
it was secure during that questioning.
But really at that point
the purpose of the questioning was medical
looking at those specific questions.
And again, the victim providing a very high level account
of what happened,
really just explaining to the officer's her injuries,
so that she could have medical attention.
That is why those statements are non testimonial
or would not be expected to be used
as an out of court substitute.
But yes, the volatiles scene is really paramount
in the 911 call.
But then the police do secure the scene.
-: The appeals court cuts it off much earlier.
So where do they,
can you sort of point out where their mistakes are
in their analysis?
-: Yes so there's a few points here and
I'll take it up and turn up the 911 call
and then to the officers.
For the 911 call,
I've had this trouble in preparing for our argument.
You look at the statements on the piece of paper
and it's easy to sort of look at them in vacuum and pause.
What is this?
What is that?
And the appeals courts application appears to
have just focused on
whether the question was eliciting past details?
But that really took it out of the context
of the ongoing emergency and what would have been the victim
or a reasonable person in the victim's perspective.
And so parsing that 911 call
and going back and forth from testimonial
to non testimonial, at least
in these circumstances did not make sense where
the victim was presented with this ongoing emergency
of just having been severely beaten.
And the defendant could return at any moment.
-: I get that with the 911.
How about the police?
Because I find that much harder.
-: So with the police,
here in applying Beatrice.
The appeals court ended its inquiry
at there's no ongoing emergency.
So then we don't engage
in any other of the analysis or factors in Michigan V Brian.
And the Commonwealth would urge
that there was an ongoing emergency
and that their primary purpose was for medical attention.
But it was also an incredibly informal interview.
The officers didn't get a lot of detail from that.
It was very high level as I've explained.
And so even looking at the other factors
in this inquiry a person in the room,
a reasonable person in that perspective of the victim
would not expect her statements to be used
as out of court substitute.
So, and to the point where also Beatrice,
I would suggest does not apply in this case.
In Beatrice this court found that
there was no longer an ongoing emergency
because when the defendant had left
or police secured the scene.
But there wasn't evidence there
-: Beatrice is the opposite.
Beatrice he's next door.
So they do have an ongoing emergency.
-: I apologize.
Yes.
So the inquiry was, I think
that if the defendant had left or police arrived
then the emergency ended.
It was almost a hypothetical, I think, in Beatrice.
But what we have here is this medical emergency
and the strangulation to the point
of losing consciousness twice
and having lots of...
-: Can I push you on that a little bit?
Because, I mean, I understand they weren't,
this is more serious than what it appears
when they first get there.
Because she's bruised, right.
But she's, you know, she's not bleeding
and it's not obvious that this has been this dramatic
an assault on her, right?
Until there's all the follow-up questioning about
that she loses consciousness, right?
When they get there, she looks stable, right?
She's not bleeding.
I take it she's up right.
So, and they're waiting for the ambulance
and as Justice, George said,
these guys aren't doctors, nor are they EMT.
So I guess isn't even the medical issue,
relatively stable at some point?
-: I would push back and say that
there was observable injuries to her face.
There were swelling and bruising officer Connolly
saw red marks and bruising to the neck.
Sergeant Hughs saw blood like veins,
potential hemorrhaging in the eyes
and the soil pants was observable.
So there was corroborating evidence
to those statements that
this was a severe beating.
And so there had to be an assessment
of how severe at that point.
And to the point
if I may just briefly touch on the issue of preservation
of the objections in this case.
Particularly as we're talking about the officer's testimony.
I think it's very important to consider the issue
separately where 911 call,
Sergeant Hughs testimony,
and officer Connolly's testimony,
all have a little bit of a different procedural issue.
And what's significant about the officer's testimony
is that how it played out
over the course of the two days,
pretrial, the motion eliminate hearing
and the board ear hearing.
At the motion and eliminate,
the trial counsel when asked the opportunity to discuss
the officer's testimony in his objection, said,
we need to have a war year.
We need to know where these statements come from.
We need to know if their observations
or response in question.
Which is absolutely right.
And then at the board year after the officer's testimony
Justice Broussard indicates his findings,
but says I would be glad to hear from you counsel
and any objections.
And at that point trial counsel does not object.
Trial counsel actually
tries to ask to elicit more testimony
which is allowed without objection.
And so then we get to the trial
and Sergeant Hughs testifies without objection
under those circumstances that should not
be considered preserved
and should be reviewed for a substantial
risk of miscarriage of justice.
And then when we get to officer Connolly's testimony
at trial, trial counsel says,
objection, just for the record.
Which again would not be with the background
of the board ear doesn't raise dough
his specific objection or arguments.
And even if it would be considered preserved once
are Connolly reviewed under harmless error,
it is harmless because it's repetitive
of Sergeant who testified first,
and was without objection.
The only two points that was brought
up on officer Connolly's testimony
on direct that was not Sergeant Hugh's was one
that she had been elbowed in the face,
which was harmless because the jury
was deadlocked on that charge.
And there was no pros.
The second point was that the sister slapped
the victim in the face three times.
Pointing to another assailant
that doesn't prejudice the defendant.
So to the extent that there is question
about the officer's testimony,
it was harmless beyond a reasonable doubt.
And Sergeant Hugh's testimony was substantial risk
of miscarriage justice.
If there are no further...
-: Thank you.
-: Thanks so much.
(mumbling)
-: Thank you.