Commonwealth v. Baldwin (Lawyers Weekly No. 10-063-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12188 COMMONWEALTH vs. SHAWN A. BALDWIN. Evidence, Spontaneous utterance. April 21, 2017. The defendant, Shawn A. Baldwin, is awaiting trial in the District Court on charges involving alleged domestic violence. Both the Commonwealth and the defendant filed motions in limine concerning the admissibility of a recording of a 911 call placed by the six year old son of the defendant and the alleged victim. The Commonwealth argued that the boy’s statements — including, “my dad just choked my mom” — were admissible as nontestimonial excited utterances. The defendant asserted that the statements were not excited utterances and that their admission would violate his right of confrontation. After a hearing at which the recording was played, the judge ordered that the recording be excluded on the ground that the boy’s voice appeared “calm,” and that the statements on the recording therefore were not “excited” utterances. A single justice of this court granted the Commonwealth’s petition for relief pursuant to G. L. c. 211, § 3, vacated the judge’s order excluding the recording, and remanded the case to the District Court for further proceedings.[1] The defendant appeals. We affirm. When a single justice has granted relief under G. L. c. 211, § 3, “we will not disturb the judgment absent an abuse of discretion or clear error of law.”[2] Commonwealth v. Narea, 454 Mass. 1003, 1004 (2009). See Commonwealth v. Lucero, 450 Mass. 1032, 1033 (2008) (affirming single justice’s grant of relief on Commonwealth’s G. L. c. 211, § 3, petition, where judge improperly entered required finding of not guilty). In this case, the single justice, citing Commonwealth v. Alcantara, 471 Mass. 550, 558 (2015), correctly concluded that the motion judge erred because, although the “degree of excitement displayed by the declarant is one factor suggestive of a spontaneous reaction, it is not the only factor.” Because it appears that the motion judge failed to consider other factors relevant to the determination whether an out-of-court statement qualifies as an excited utterance, her order relative to the 911 recording must be vacated. A statement meets the test for admissibility as an excited utterance 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 […]