The Massachusetts Appeals Court in the case of Commonwealth v. Figueroa, decided on April 29, 2011, upheld a defendant’s conviction for indecent assault and battery in Chelsea, Massachusetts despite arguments that the court improperly allowed statements of the victim into evidence without providing an opportunity for cross examination.

In Figueroa, the defendant was working at Fairlawn Nursing Home in Leominster, Massachusetts and was alleged to have had sex with an eighty-six year old woman suffering from dementia. At trial, the victim did not testify, but two witnesses from the hospital did testify, including a witness that claimed to have witnessed the incident.

The legal issue surrounding this Massachusetts sex crime was whether statements that the victim made to another CNA describing the defendant’s actions, in having sex with the victim and indicating that the defendant claimed to be performing a test on the victim. The Massachusetts criminal attorney objected to these statements being admitted into evidence.

The Appeals Court stressed that an excited utterance is admissible if it is made following an occurrence or event that is sufficiently startling to render inoperative the normal reflective process and the statement was a spontaneous reaction to the occurrence or event.

Having found that the statement was admissible under the rules of evidence, the next issue for the Appeals Court was whether the statement could be admitted without providing the defendant an opportunity for cross examination of the speaker. Accordingly, the Court addressed the issue of whether the statements were testimonial.

The Court discussed that statements made in response to law enforcement questioning are testimonial per se, except where the statements are meant to secure a volatile scene or to establish the need to provide medical care. The Court went on to stress that it will evaluate whether or not a statement is testimonial based on whether a reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting a crime.

The Appeals Court concluded that the victim’s statement that the defendant did the test again indicates that the victim understood the question to be about her medical condition. The Court held that the inquiry is whether a reasonable person in the declarant’s position would objectively believe that the statement would be used in a criminal prosecution. The Court held that the declarant would not have reasonably believed her statements would be used to prosecute the defendant.

The decision of the Appeals Court is difficult to reconcile with the decision of the United States Supreme Court in Michigan v. Bryant and I would expect the SJC to reverse the conviction should further appellate review by sought. In Bryant, the United States Supreme Court held that the statement of a victim identifying the person that shot him was nontestimonial because the police were responding to an ongoing emergency.

In contrast, in the case of Figueroa, the victim was describing a past criminal act. The victims purpose in describing the actions of the defendant were not to obtain further medical treatment, but to describe what happened to her; the fact that the victim may not have known of the illegality of the conduct cannot negate that the objective purpose of the statement was to describe the criminal conduct of the defendant. Further, at the time of the statement, there does not appear to be any ongoing emergency as other hospital employees had come into the room. Additionally, the purpose of the victim being questioned was to determine whether the defendant had committed a criminal act in his care of the victim. Accordingly, when the victim was being questioned by the hospital employees, the employees were acting essentially as police officers trying to determine what had happened at a crime scene. In a footnote, the Appeals Court note that the employee testified that when she first spoke to the victim she did not think she would have to report anything to the police, but it was only after hearing the victim’s response that she realized she would be required to notify the police.

The result in this case deprived the defendant of his Sixth Amendment Right of Confrontation and I would expect the SJC to reverse if further appellate review is granted.
The Court’s decision undermines the basic purpose of the right of confrontation to allow for face to face confrontation of an individual accuser at a criminal trial.

As an Massachusetts criminal attorney, charges involving Massachusetts sex crimes often involve complex legal issues concerning the right of confrontation, admissibility of evidence and review of records in order to prepare a defense to the charge at trial. Sex crimes often require a jury trial as a result of the significant consequences that result upon conviction. If you are charged with a sex offense of indecent assault and battery, call Attorney DelSignore as he is an experienced trial lawyer committed to advocating on your behalf to obtain a not guilty verdict.