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17-P-254                                                Appeals Court

            COMMONWEALTH      vs.    LESTER J. WILSON, JR.


                              No. 17-P-254.

       Worcester.          June 21, 2018. - November 7, 2018.

                Present:    Agnes, Blake, & Sacks, JJ.


Assault and Battery. Evidence, Hearsay, Spontaneous utterance.
     Constitutional Law, Confrontation of witnesses, Harmless
     error. Practice, Criminal, Hearsay, Confrontation of
     witnesses, Harmless error. Error, Harmless.



     Complaint received and sworn to in the Fitchburg Division
of the District Court Department on September 29, 2015.

    The case was heard by Christopher P. LoConto, J.


     Brian J. Anderson for the defendant.
     Rose-Ellen El Khoury, Assistant District Attorney, for the
Commonwealth.


    AGNES, J.    The defendant, Lester J. Wilson, Jr., appeals

from his conviction of assault and battery on a family or

household member, G. L. c. 265, § 13M, following a jury-waived

trial in the District Court.        The principal question he presents

is whether the judge erred in ruling that statements made by the
                                                                  2


defendant's wife (1) to a police dispatcher during a 911 call to

report that the defendant had assaulted and threatened her, and

(2) to one of the first responding police officers were

admissible at the defendant's trial where his wife asserted

spousal privilege.   For the reasons that follow, we conclude

that even if the statements qualified as excited utterances,

most of them were testimonial in nature and therefore not

admissible under the jurisprudence of the confrontation clause

in the Sixth Amendment to the United States Constitution.1    A

confrontation clause violation is constitutional error.2    The

required remedy for a confrontation clause violation is a new

trial unless the error was harmless beyond a reasonable doubt.3


     1 "The confrontation clause bars the admission of
testimonial out-of-court statements by a declarant who does not
appear at trial unless the declarant is unavailable to testify
and the defendant had an earlier opportunity to cross-examine
him." Commonwealth v. Simon, 456 Mass. 280, 296 (2010).

     2 "The Sixth Amendment to the United States Constitution
guarantees that '[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses
against him.' Similarly, art. 12 of the Massachusetts
Declaration of Rights provides that 'every subject shall have a
right to produce all proofs that may be favorable to him [and]
to meet the witnesses against him face to face.'" Simon, 456
Mass. at 295. In cases like this, involving statements that are
admissible under an exception to the hearsay rule, "the
protection provided by art. 12 is coextensive with the
guarantees of the Sixth Amendment to the United States
Constitution." Commonwealth v. DeOliveira, 447 Mass. 56, 57 n.1
(2006).

     3 See, e.g., Commonwealth v. Vasquez, 456 Mass. 350, 360
(2010).
                                                                    3


Here, the incriminating character of the statements in question

went far beyond the scope of the brief thirty-one-second portion

of the 911 call that was properly admitted.   Because we are not

satisfied beyond a reasonable doubt that the improperly admitted

evidence did not contribute to the judge's finding that the

defendant was guilty, there must be a new trial.   See

Commonwealth v. Rodriguez, 445 Mass. 1003, 1004 (2005).

    Background.   The essential facts relating to the judge's

rulings that are the subject of this appeal are not in dispute.

Prior to trial, the judge conducted a hearing on the

Commonwealth's motion in limine to admit the contents of a six-

minute 911 call to the Fitchburg police department on September

27, 2015, and statements made by the defendant's wife to

Fitchburg police Officer Keith Barnes ten to twenty minutes

later when he arrived at the Fitchburg address that was

associated with the 911 call.   At the outset of this hearing,

defense counsel informed the judge that the defendant's wife

intended to assert spousal privilege and to decline to testify.

See Mass. G. Evid. § 504(a) (2018).   The judge conducted a voir

dire with the defendant's wife and concluded that her decision

to assert spousal privilege was voluntary.    See Commonwealth v.
                                                                     4


Szerlong, 457 Mass. 858, 864 n.10 (2010), citing Commonwealth v.

Fisher, 433 Mass. 340, 350 (2001).

     1.   911 call.    The judge listened to an audio recording of

the six-minute 911 call.     This panel has listened to the same

recording.4    It consists of two segments.   During the first

minute or so, the defendant's wife requested that a police

officer be sent to her home; she gave her name, address, and

telephone number, and stated that she and her husband had

argued.   She continued by stating that he "choked me out," and

that he said he would be back in fifteen minutes to kill her.

After the dispatcher informed the caller that a police officer

would be dispatched to her address, the caller was put on hold

for about ninety seconds.     When the conversation resumed, the

dispatcher asked whether the defendant told her how he planned

to kill her.    The caller responded in the negative.   She then

provided the dispatcher with the defendant's name.      After

telling the caller that officers were on the way, the dispatcher

asked her to "start from the beginning."

     The caller then explained that there was an "ongoing thing

for a long time" based on the defendant's belief that she is a

"heroin junkie."      The defendant's wife strenuously denied that




     4 An audio recording of that call is part of the record on
appeal.
                                                                     5


she uses drugs.   She added that one week earlier, she and the

defendant "got into a fight," and he "choked" her almost to the

point of "suffocation."   When the dispatcher asked her about the

events of that day, the caller informed him that today was their

anniversary.   She said the defendant was angry because he said a

person she was with in a photograph posted on the social media

Web site Facebook was a heroin user.     She also informed the

dispatcher that the defendant grabbed her by her throat, tried

to suffocate her in a pillow, and tried to "shove a handful" of

her migraine headache pills down her throat.    The call ended

after the defendant's wife told the dispatcher that the

defendant was not present, but rather was "out on the road"

driving her son's red Honda CRV sport utility vehicle, which had

one of the old "green" Massachusetts license plates.

    The defendant argued that the statements made by his wife

on the 911 call were not admissible as excited utterances

because at the time she made them she was no longer under the

stress of an exciting event.    See Commonwealth v. Burnett, 417

Mass. 740, 743-744 (1994).     Also, the defendant argued that the

admission of these statements would violate his confrontation

clause rights because the declarant was not available to cross-

examine.   The judge ruled that the first portion of the recorded
                                                                         6


911 call was admissible (until the point where the caller is put

on hold), but that the remainder of the recorded call was not.5

     2.    Statements made outside marital home.    The judge

appropriately conducted a voir dire of Officer Barnes.         He

testified that he was dispatched to the marital home on the

night in question where he found the defendant's wife outside

the home, talking to other officers.       In describing his

interaction with the defendant's wife, Officer Barnes stated,

"She was hysterical.    She was scared."    Officer Barnes further

testified that it was difficult for him to calm her down; "she

would start talking, and then she would start crying."         It took

Officer Barnes ten minutes to get her to respond to questions

about what had happened.    Although she was still upset during

their conversation, she was "more composed" than she was when he

arrived and was not crying.    When questioned about what he asked

her, Officer Barnes testified, "I asked her how the whole thing

started.   I asked her, you know, why this happened, what he [the

defendant] was upset about, what exactly he said, questions like


     5 In explaining the reason for his ruling, the judge
addressed whether the statements qualified as excited
utterances, but did not independently address whether they were
testimonial and thus subject to the confrontation clause. See
Simon, 456 Mass. at 295 (describing process of determining
whether such statements are admissible as "two-step inquiry" in
which hearsay question is addressed first followed by
determination whether statements are testimonial and thus
subject to confrontation clause).
                                                                     7


that."     The defendant's wife told Officer Barnes that the

defendant had left the residence and said he would return in

fifteen minutes.     She gave Officer Barnes information about the

vehicle the defendant was using and Officer Barnes issued a BOLO

("Be On the Lookout") bulletin to other officers.     The

defendant's wife told him that earlier that day, the defendant

came home from work and accused her and a friend with whom she

had appeared in a photograph posted on Facebook of being heroin

addicts.    "Then she told me that he attempted to choke her out

and shove her head into a pillow.     He went upstairs.   He came

back downstairs with a handful of pills."     The judge ruled that

all the statements made by the defendant's wife to Officer

Barnes were admissible.6

     3.    Evidence at trial.   The Commonwealth's case at trial

consisted of the testimony of Officer Barnes and the first

thirty-one seconds of the recorded 911 call.     Officer Barnes

testified that it took ten minutes for the defendant's wife to

calm down.    Officer Barnes further testified that he asked her




     6 In support of his ruling the judge cited three cases:
Commonwealth v. Santiago, 437 Mass. 620 (2002); Commonwealth v.
Grant, 418 Mass. 76 (1994); and Commonwealth v. Crawford, 417
Mass. 358 (1994). Although these cases are consistent with the
law governing the excited utterance exception, they precede the
seminal decision in Crawford v. Washington, 541 U.S. 36 (2004),
and do not address the application of the confrontation clause.
See DeOliveira, 447 Mass. at 57-58.
                                                                    8


where the defendant was in order to ensure that he had left the

scene and was not in the house.   The defendant's wife informed

Officer Barnes that the defendant left the premises and said

that he would be back in fifteen minutes to kill her.     Officer

Barnes then testified, "I asked her to give me the rundown of

exactly how it happened."   He continued as follows:    "She told

me that she came home, that her husband —- or she was home.       Her

husband came home, and he was extremely upset right when he

walked in, that he had seen a picture of her with a friend that

he thought to be a drug addict.   He accused her of being a drug

addict.   She went downstairs.   He followed.   He attempted to

strangulate her and stick her head into a pill (sic) and

suffocate her.   He then went upstairs.   He grabbed a handful of

pills, tried to shove them down her throat, and said[,] 'If you

want to be a drug addict, I'm going to make you a drug addict.'"

On cross-examination, Officer Barnes added that the defendant's

wife told him that the strangulation and the attempt to force

her to ingest pills occurred on a "bed downstairs."

    The defendant did not testify.     The sole witness for the

defendant was his son who testified that he was at home in the

downstairs bedroom with the door locked during the time of the

alleged crime.   He added that his bedroom was the only bedroom

on the first floor.
                                                                      9


    Discussion.      1.   Admissibility of recorded 911 call.   In

circumstances in which the Commonwealth offers out-of-court

statements made by a declarant who does not testify at trial,

both the rule against hearsay and the confrontation clause come

into play and require a "two-step inquiry."     Commonwealth v.

Simon, 456 Mass. 280, 295 (2010).     The hearsay issue should be

addressed first.     Commonwealth v. Linton, 456 Mass. 534, 548

(2010).

    a.    Excited utterances.    In determining whether an out-of-

court statement qualifies as an excited utterance, the

"essential issue is whether the statement was made under the

stress of an 'exciting event and before the declarant has had

time to contrive or fabricate the remark, and thus . . . has

sufficient indicia of reliability.'"      Commonwealth v. Baldwin,

476 Mass. 1041, 1042 (2017), quoting Commonwealth v. Zagranski,

408 Mass. 278, 285 (1990).      See Mass. G. Evid. § 803(2) (2018).

There is no requirement that the statement explain or qualify

the underlying startling event.     See Commonwealth v. Santiago,

437 Mass. 620, 625 (2002) (critical inquiry is what effect, if

any, startling event had on declarant).      The startling event

that gives rise to the declarant's statement may be established

by the excited utterance itself.     Commonwealth v. Nunes, 430

Mass. 1, 4 (1999).     The relevant factors to consider include

whether the statement was made in the same location as the
                                                                    10


startling event; the amount of time between the startling event

and the making of the statement; and the age, spontaneity, and

degree of excitement of the declarant.     Baldwin, supra.   "The

circumstances enumerated are neither exhaustive nor mandatory;

rather, the judge is to consider the particular circumstances in

each case. . . .   Further, the judge should not inquire as to

whether the statement is in fact credible. . . .     That task

falls to the finder of fact."    Commonwealth v. Joyner, 55 Mass.

App. Ct. 412, 415 (2002).     Finally, the mere fact that the

declarant's statement is in response to questions does not

necessarily disqualify it as an excited utterance.     See Simon,

456 Mass. at 296 (shooting victim's answers to police

dispatcher's questions during 911 call were "spontaneous

reaction" to earlier home invasion and shooting).     Contrast

Commonwealth v. McCoy, 456 Mass. 838, 849 (2010) (statements

made by victim of sexual assault during interview by sexual

assault nurse examiner at hospital lacked requisite degree of

spontaneity to qualify as excited utterances).

    In the present case, the defendant argues that the portion

of the 911 call admitted in evidence does not qualify as an

excited utterance because there was no medical emergency, his

wife did not exhibit "the characteristics of someone frantically

calling 911," and his wife was "reflecting on the details of a

past event."   We disagree.   Although the existence of a medical
                                                                    11


emergency may contribute to a finding that the declarant was

under the stress of an exciting event, it is not a foundation

requirement for the hearsay exception.     As for the declarant's

demeanor, the judge made a specific finding that the defendant's

wife was crying during the initial portion of the 911 call.        In

any event, a declarant may be under the stress of a startling

event without appearing to be frantic or excited.     See Baldwin,

476 Mass. at 1042.     Finally, in order to meet the foundation

requirements for the excited utterance exception, the proponent

of the evidence is not required to demonstrate that the

startling event was ongoing when the declarant made the

statement.     Commonwealth v. Rodriguez, 90 Mass. App. Ct. 315,

319 (2016).7


     7 Certainly, there is a strong case for concluding that an
out-of-court statement qualifies as an excited utterance when
the facts indicate that the declarant made the statement while
the crime was ongoing, see, e.g., Commonwealth v. Mulgrave, 472
Mass. 170, 176-177 (2015) (victim's text message that her
husband was present and threatening to kill her); Commonwealth
v. Galicia, 447 Mass. 737, 745 (2006) (declarant telephoned 911
and stated, "My husband is beating me up right now"), or
immediately after being severely injured. See, e.g.,
Commonwealth v. Beatrice, 460 Mass. 255, 259 (2011) (911 caller
was "upset and breathing heavily," and reported that she had
"just" been assaulted and needed an ambulance); Simon, 456 Mass.
at 296 (declarant's statement made shortly after he suffered
gunshot wounds during home invasion); Commonwealth v. Nesbitt,
452 Mass. 236, 246 (2008) (911 caller "sustained twenty-three
stab wounds only moments before the call"). However, "our
courts have not set a definite and fixed time limit on the
excited utterance exception to the hearsay rule, but instead
have held that a victim need only be still sufficiently agitated
or 'under the influence of the exciting event' at the time the
                                                                  12


     We review a decision that an out-of-court statement

qualifies as an excited utterance under the abuse of discretion

standard.   We defer to the judge's decision unless we conclude

that he failed to weigh properly the relevant factors with the

result that the decision was outside the range of reasonable

alternatives.   Id. at 318-319.   Here, after listening to the

recorded 911 call (the only evidence that was available because

the declarant had asserted spousal privilege), we are satisfied

that the judge did not abuse his discretion in concluding that

when the defendant's wife made the 911 call, she was both under

the influence of the criminal assault that she was reporting had

just occurred, and that what she related to the dispatcher

during the admitted portion of the call was not the product of

reflective thought.     See Commonwealth v. Beatrice, 460 Mass.

255, 258-259 (2011).8



statement was made." Commonwealth v. Wilcox, 72 Mass. App. Ct.
344, 351 (2008), quoting Commonwealth v. King, 436 Mass. 252,
254 (2002) (statement by declarant to emergency room doctor who
treated her, made one hour after assault, qualified as excited
utterance. See Commonwealth v. Marshall, 434 Mass. 358, 364
(2001) (declarant's statement made while she was "crying and
nervous" and "in fear" qualified as excited utterance even
though made two hours after defendant threatened her with
knife); Grant, 418 Mass. at 81-82 (one-hour interval between
murder and declarant's statement, made while she was
"hysterical," provided support for admission as excited
utterance).

     8 For the first time on appeal, the defendant also
challenges trial testimony by Officer Barnes that he recognized
the voice on the recording of the 911 call as belonging to the
                                                                    13


    b.    Confrontation clause.   Although it does not appear that

the judge separately considered the defendant's confrontation

clause objection to the admission of the initial portion of the

911 call, there was no error.     The statements in question were

made during a very brief conversation with a dispatcher for the

police department.   The statements consisted of the declarant's

request for police assistance; a brief description of the

incident, including the defendant's threat to return in fifteen

minutes to kill her; and her name and address.     The record

supports the judge's finding that the declarant was crying as

she spoke to the dispatcher.    In these circumstances, a

reasonable person in the declarant's position would not have

believed that the "primary purpose" of the statements was "to

establish or prove past events potentially relevant to later

criminal prosecution."   Davis v. Washington, 547 U.S. 813, 822

(2006).   Accord Michigan v. Bryant, 562 U.S. 344, 356-357

(2011); Simon, 456 Mass. at 298-299; Commonwealth v. Nesbitt,

452 Mass. 236, 247-248 (2008).    As the United States Supreme

Court observed in Davis, supra at 827:     "a 911 call . . . is

ordinarily not designed primarily to 'establis[h] or prov[e]'



defendant's wife. There was no error. Officer Barnes testified
that the basis for his voice identification was the conversation
with the caller at the scene. See Commonwealth v. Lykus, 367
Mass. 191, 201 n.4 (1975). See also Mass. G. Evid. § 901(b)(5)
(2018).
                                                                    14


some past fact, but to describe current circumstances requiring

police assistance."    See Beatrice, 460 Mass. at 262 (in setting

of 911 call in which declarant reported that she had been beaten

by her boy friend, court regarded emergency as ongoing until

"the arrival of the police or the departure of the defendant").

Contrast Commonwealth v. Lao, 450 Mass. 215, 226 (2007) (911

call was testimonial where made only after declarant spoke to

defendant and two other people about incident).

    2.    Admissibility of statements made to Officer Barnes.     a.

Excited utterances.    The statements made by the defendant's wife

to Officer Barnes outside the marital home present a different

and closer question.   The defendant, though still at-large, was

not on the scene, having left in their son's vehicle.    In

addition to Officer Barnes, other officers were present.

Initially, the victim was very upset, but after ten minutes or

so, she calmed down.   The declarant did not request medical

assistance.   As noted above, Officer Barnes asked where the

defendant was and, after learning that the defendant was no

longer at the scene of the alleged crime, proceeded to ask the

declarant "to give me the rundown of exactly how it happened."

The focus of Officer Barnes's questioning quickly turned to past

events.   And the defendant's wife was repeating statements she

had made previously to the police dispatcher during the second

portion of the 911 call, which the judge excluded from the case.
                                                                   15


These factors have a bearing on whether the declarant had time

for reflective thought before her conversation with Officer

Barnes.   Nevertheless, the critical question is whether the

declarant's responses were "a spontaneous reaction to the

occurrence or event and not the result of reflective thought"

(citation omitted).    Santiago, 437 Mass. at 623.   In light of

the short interval of time between the startling event and the

conversation between Officer Barnes and the defendant's wife,

the degree to which she was upset and excited when Officer

Barnes arrived on the scene, and the degree to which we

customarily defer to evidentiary rulings by a trial judge, we

cannot say that the judge abused his discretion in concluding

that her statements outside the marital home qualified as

excited utterances.9


     9 In Commonwealth v. McLaughlin, 364 Mass. 211, 221-222
(1973), the Supreme Judicial Court expressed the reasoning
underlying the excited utterance or spontaneous exclamation
exception to the rule against hearsay in terms drawn explicitly
from Professor John Wigmore's treatise on the law of evidence:

     "The exception to the hearsay rule which admits hearsay
     consisting of spontaneous exclamations 'is based on the
     experience that, under certain external circumstances of
     physical shock, a stress of nervous excitement may be
     produced which stills the reflective faculties and removes
     their control, so that the utterance which then occurs is a
     spontaneous and sincere response to the actual sensations
     and perceptions already produced by the external shock.
     Since this utterance is made under the immediate and
     uncontrolled domination of the senses, and during the brief
     period when considerations of self-interest could not have
     been brought fully to bear by reasoned reflection, the
                                                                 16


    b.   Confrontation clause.   Whether the conversation between

Officer Barnes and the defendant's wife was subject to exclusion

based on the confrontation clause presents a separate and

fundamentally different question.   The initial statement made by

the defendant's wife pertaining to the defendant's whereabouts




    utterance may be taken as particularly trustworthy (or, at
    least, as lacking the usual grounds of untrustworthiness),
    and thus as expressing the real tenor of the speaker's
    belief as to the facts just observed by him; and may
    therefore be received as testimony to those facts.'
    Wigmore on Evidence (3d ed.) § 1747."

See also 6 Wigmore on Evidence § 1747 (Chadbourn ed. 1972). The
reasoning employed by Professor Wigmore, and adopted "hook,
line, and sinker" in McLaughlin, remains the foundation for the
excited utterance exception in Massachusetts. See Rocco v.
Boston-Leader, Inc., 340 Mass. 195, 196-197 (1960); Mass. G.
Evid. § 803(2) (2018), and cases cited.

     However, the "Wigmorian" view, which is also reflected in
Fed. R. Evid. § 803(2) (2017), has been severely criticized.
"The entire basis for the [excited utterance] exception may
. . . be questioned. While psychologists would probably concede
that excitement minimizes the possibility of reflective self-
interest influencing the declarant's statements, they have
questioned whether this might be outweighed by the distorting
effect of shock and excitement upon the declarant's observation
and judgement." 2 McCormick on Evidence § 272, at 366 (7th ed.
2013). See United States v. Boyce, 742 F.3d 792, 802 (7th Cir.
2014) (Posner, J., concurring) ("Like the exception for present
sense impressions, the exception for excited utterance rests on
no firmer ground than judicial habit, in turn reflecting
judicial incuriosity and reluctance to reconsider ancient
dogmas"). Because this issue was not raised in any of the
defendant's evidentiary objections, we have no need to consider
it further. See People v. Cummings, 31 N.Y.3d 204, 213-216
(2018) (Rivera, J., concurring).
                                                                 17


was nontestimonial.10   Its purpose was "to describe current

circumstances requiring police assistance."   Davis, 547 U.S. at

827.    Indeed, as the Supreme Judicial Court stated in Beatrice,

460 Mass. at 262, quoting Davis, supra at 832:   "The Supreme

Court has recognized that, in domestic disputes, '[o]fficers



       Officer Barnes testified that his first concern was to
       10

determine whether the defendant was inside the home: "She said
that he left, but I wanted to make sure that he was gone. I
asked her what had happened, why it started." When asked, "What
was her response at that time," Officer Barnes testified, "She
told me that he left and that he said that he was going to kill
her in 15 minutes when he came home. And then she told me that
it started because of a picture that was posted on Facebook with
her and a friend." Officer Barnes next repeated his testimony
that the defendant's wife "was very upset." When asked by the
prosecutor if he asked her "any other questions about that
night," Officer Barnes testified, "I asked her to give me the
rundown of exactly how it happened." Officer Barnes then
testified in detail about the events of that evening and what
led up to the incident, as related to him by the defendant's
wife.

     Taken in context, we regard the brief testimony by Officer
Barnes (totaling ten pages of transcript including direct and
cross-examination) to describe two phases of his interrogation
of the defendant's wife. The first phase included his
statements to calm her down and his inquiry about the location
of the defendant. Officer Barnes's testimony that the
defendant's wife told him that the defendant had left the scene
but said he would return "to kill her in 15 minutes when he came
home," was properly admitted because the declarant's statements
were made in response to Officer Barnes's attempts to determine
if the defendant was on the scene. However, the second phase
during which Officer Barnes told the defendant's wife, "[G]ive
me the rundown of exactly how it happened" and the declarant's
response consisting of a detailed account of the incident and
what led up to it (an account that involved facts not contained
in the 911 call or any other evidence admitted at trial) was
part of Officer Barnes's criminal investigation and was not
designed to address an ongoing emergency.
                                                                     18


called to investigate . . . need to know whom they are dealing

with in order to assess the situation, the threat to their own

safety, and possible danger to the potential victim,' so such

'initial inquiries' often produce nontestimonial statements."11

     However, "'a conversation which begins as an interrogation

to determine the need for emergency assistance' can 'evolve into

testimonial statements.'"    Bryant, 562 U.S. at 365, quoting

Davis, 547 U.S. at 828.     Under one mode of analysis, the

conversation at the scene between Officer Barnes and the

defendant's wife took place after the defendant was no longer in

the area, and when the scene was secure.     This mode of analysis

leads to the conclusion that due to the police presence, the




     11In Commonwealth v. Gonsalves, 445 Mass. 1, 10 (2005), the
Supreme Judicial Court defined the parameters of the
confrontation clause in terms of statements that are
"testimonial per se" and those that are "testimonial in fact."
The former category described statements that are the result of
interrogation by law enforcement officers who are performing an
investigative function. Id. at 7-8. However, the court
recognized that police officers interact with the public as well
as victims of crime in other ways and for other purposes. When
law enforcement officers are acting "to secure a volatile scene
or to establish the need for or provide medical care," the
questions they may ask are not regarded as "interrogation" and
thus the statements made by victims and others are not regarded
as falling within the scope of the confrontation clause. Id. at
9. "Rather, such questioning is considered part of the
government's peacekeeping or community caretaking function,
'totally divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a criminal
statute.'" Id., quoting Commonwealth v. Evans, 436 Mass. 369,
372 (2002).
                                                                  19


defendant's absence, and the fact that there was no need to

provide the defendant's wife with medical services, the

emergency was no longer ongoing.   See Beatrice, 460 Mass. at

262; Commonwealth v. Burgess, 450 Mass. 422, 429 (2008).     Under

an alternative mode of analysis, the initial emergency that

brought police officers to the home where the defendant and his

wife resided was still ongoing when Officer Barnes had a

conversation with the defendant's wife because she had earlier

reported that the defendant planned to return home in a short

time and kill her.   Under this mode of analysis, because an

armed individual who had made a threat to kill his wife was

still at-large, the scene was not secure despite the presence of

police officers and the absence of a medical emergency.

    However, regardless of which mode of analysis is employed

to assess whether the statements in question were made while

there was an ongoing emergency, the critical inquiry is what was

the primary purpose of the interrogation by Officer Barnes.

Nontestimonial statements are those "made in the course of

police interrogation under circumstances objectively indicating

that the primary purpose of the interrogation is to enable

police assistance to meet an ongoing emergency."   Davis, 547

U.S. at 822.   Testimonial statements are those made in

circumstances in which "the primary purpose of the interrogation

is to establish or prove past events potentially relevant to
                                                                   20


later criminal prosecution."   Id.   Applying this test, the

statements made to Officer Barnes, beyond those indicating that

the defendant was no longer in the vicinity, were testimonial

because "[n]othing in the record indicate[d] that [the

officer's] questioning . . . was designed to secure the scene"

or to "inquir[e] about any medical needs."    Commonwealth v.

Gonsalves, 445 Mass. 1, 16 (2005).   Although the defendant's

wife was initially upset and crying, "the primary purpose of the

questioning was to learn what had happened."   Rodriguez, 90

Mass. App. Ct. at 322.12   After confirming with the defendant's

wife that the defendant was no longer inside the home, the

questions Officer Barnes asked the defendant's wife were

pointedly about past events:   "I asked her to give me the

rundown of exactly how it happened."    The defendant's wife

responded to this line of questioning by providing a detailed

description of the incident, stating that the defendant

attempted to strangle her, to suffocate her with a pillow, and

to shove pills down her throat.




     12"[A] startled person who identifies a suspect in a
statement made to a police officer at the scene of a crime
surely knows that the statement is a form of accusation that
will be used against the suspect. In this situation, the
statement does not lose its character as a testimonial statement
merely because the declarant was excited at the time it was
made." Lopez v. State, 888 So.2d 693, 699-700 (Florida Dist.
Ct. App. 2004).
                                                                    21


    The fact that the statements made to Officer Barnes were

not the product of detailed interrogation, but instead were in

response to open-ended questions, does not affect their

character as testimonial.    Davis, 547 U.S. at 822 n.1 ("Framers

were no more willing to exempt from cross-examination

volunteered testimony or answers to open-ended questions than

they were to exempt answers to detailed interrogation").

    Apart from a consideration of the investigatory character

of the questions asked by Officer Barnes, the statements made by

the defendant's wife to a uniformed police officer outside the

marital home were "testimonial in fact" because "a reasonable

person in the declarant's position would anticipate the

statement[s'] being used against the accused in investigating

and prosecuting a crime."    Gonsalves, 445 Mass. at 12-13.   See

Burgess, 450 Mass. at 431; Rodriguez, 445 Mass. at 1004.      Here,

as in Commonwealth v. Galicia, 447 Mass. 737, 746 (2006), a case

involving facts that are remarkably similar to those in the

present case, "[t]he interview itself took on the more formal

cast of a police investigation of a crime."     Even if we take

into account the knowledge possessed by Officer Barnes and his

purpose in questioning the defendant's wife at the scene, see

Beatrice, 460 Mass. at 260 n.7, the result is the same -- an

investigating police officer was gathering historical facts

about a reported crime.     For these reasons, the judge erred in
                                                                    22


failing to exclude all but the introductory statements made by

the defendant's wife to Officer Barnes.

      The dissent takes the position that the statements made by

the defendant's wife at the scene were nontestimonial and their

admission in evidence thus did not violate the defendant's

rights under the confrontation clause.    Post at         .   The

dissent focuses, in part, on Officer Barnes's statement in which

he said, "The main thing I was worried about was where is [the

defendant]" in concluding that Officer Barnes's primary purpose

in questioning the defendant's wife was to secure the scene of

the alleged crime.   Post at        .    However, when Officer

Barnes's testimony is examined in context, it is evident that

his concern about the defendant's whereabouts was satisfied when

the defendant's wife told him that the defendant had left the

scene.   The remainder of the conversation between the

defendant's wife and Officer Barnes was concerned exclusively

with historical facts about the alleged crime and what led up to

it.   See Bryant, 562 U.S. at 365 (conversation that begins as

inquiry to determine need for emergency assistance can evolve

into testimonial statements).

      In determining the primary purpose of a police

interrogation, "the relevant inquiry is not the subjective or

actual purpose of the individuals involved in a particular

encounter, but rather the purpose that reasonable participants
                                                                   23


would have had, as ascertained from the individuals' statements

and actions and the circumstances in which the encounter

occurred."   Id. at 360.   In differentiating between

nontestimonial and testimonial statements made during a 911

call, the Court in Davis noted that the former statements were

"about events as they were actually happening, rather than

'describ[ing] past events,'" (citation omitted) consisted of "a

call for help against a bona fide physical threat," and were

"necessary . . . to resolve the present emergency, rather than

simply to learn (as in Crawford) what had happened in the past."

Davis, 547 U.S. at 827.    Here, using these characteristics of

nontestimonial statements as a guideline, the primary purpose of

the statements made by the defendant's wife to Officer Barnes at

the scene, in response to his question about "how the whole

thing started," was "to establish or prove past events

potentially relevant to later criminal prosecution."     Id. at

822.

       The testimonial character of the narrative about what led

up to the alleged physical attack conveyed by the defendant's

wife and Officer Barnes is further illustrated by the United

States Supreme Court's analysis of the facts in Hammon v.

Indiana, the companion case decided in the same opinion as

Davis.   See Davis, supra at 819-821.   In Hammon, like the

present case, the question before the Court was whether
                                                                        24


statements made by the declarant, who was the defendant's wife,

to police officers at the scene were testimonial.         Id. at 829.

It was a chaotic scene -- the declarant was on the front porch

when the police arrived.     Id. at 819.    The police were given

permission to enter the home.     Id.   The police observed a

flaming gas heater that was overturned.       Id.   The floor was

covered with pieces of broken glass.       Id.   The defendant was in

the kitchen.    Id.   He told the police that he and the declarant

had argued, but that     "everything was fine now."      Id.   When the

police took the declarant aside to question her, the defendant

tried to intervene and "became angry" when told he would have to

remain separated from the declarant.       Id. at 820.    The declarant

gave an account of the events, explaining that the defendant

broke the furnace and shoved her to the floor onto the broken

glass.   Id.   She also told the police that the defendant hit her

in the chest and attacked their daughter.        Id.   The Indiana

Supreme Court ruled that the declarant's statements to the

police at the scene were nontestimonial.         Id. at 821.   The

United States Supreme Court disagreed.       As the Court said, "When

the officer questioned [the declarant] for the second time, and

elicited the challenged statements, he was not seeking to

determine (as in Davis) 'what is happening,' but rather 'what

happened.'     Objectively viewed, the primary, if not indeed the

sole, purpose of the interrogation was to investigate a possible
                                                                       25


crime -- which is, of course, precisely what the officer should

have done."   Id. at 830.    This was so notwithstanding that the

angry defendant remained on the scene and attempted to

participate in the declarant's conversations with the police.

Id. at 819-820.

    Here, just as in Hammon, the statements made by the

defendant's wife "deliberately recounted, in response to police

questioning, how potentially criminal past events began and

progressed.   Moreover, in the present case, unlike in Hammon,

the conversation took place after the defendant left the scene.

Such statements under official interrogation are an obvious

substitute for live testimony, because they do precisely what a

witness does on direct examination; they are inherently

testimonial."   Id.

    In the cases relied on by the dissent, the statements made

by the alleged victims were deemed testimonial.      See Galicia,

447 Mass. at 746; Gonsalves, 445 Mass. at 16-17; Rodriguez, 90

Mass. App. Ct. at 327.      The dissent attempts to distinguish

these cases on the basis that, "Given this, the defendant's

threat to return to the home to kill the victim underscores the

emergency that existed at the time."      Post at        .   This is

inconsistent with the Massachusetts definition of what

constitutes an ongoing emergency in domestic violence cases.

The Galicia case is particularly instructive.       After explaining
                                                                  26


that a domestic violence victim's statements to the 911

dispatcher were nontestimonial, for the same reasons given in

Davis, the court concluded that the victim's statements to

responding police officers at the scene, after "the assault had

ended and the urgency had subsided," were not elicited primarily

to enable the police to meet an ongoing emergency and thus were

testimonial.   447 Mass. at 745.   Additionally, in Beatrice, 460

Mass. at 262, the court recognized that the "arrival of the

police or the departure of the defendant" dispels any further

threat to a victim of domestic violence and thus terminates any

preceding emergency.13   See Simon, 456 Mass. at 300 ("The

victim's two statements describing the shooting in great detail

related to past events; they were not relevant to resolving the

medical emergency, securing the crime scene, or protecting

emergency personnel responding to the call").   See Bryant, 562

U.S. at 363 ("Domestic violence cases . . . often have a

narrower zone of potential victims than cases involving threats

to public safety").




     13This statement from Beatrice that the arrival of the
police eliminates the threat to a victim of domestic violence
refers only to the definition of an ongoing emergency for the
purpose of a confrontation clause analysis. In a larger sense,
many victims of domestic violence remain in danger of being
injured or killed by their perpetrators after involvement by the
police, and, regrettably, even after the victim obtains an abuse
prevention order.
                                                                  27


    Likewise, for the reasons expressed by the Supreme Court of

New Jersey, the dissent's "expansive definition" of "ongoing

emergency" is not consistent with the understanding of the

confrontation clause expressed in Davis:

    "Like in Hammon, the non-testifying witness here told the
    police officer 'what had happened.'. . . There was no
    ongoing emergency -- no immediate danger -- implicating
    either the witness or the victim, both of whom were in the
    company of police officers at the time of the
    'interrogation' at Public School 30. We disagree with the
    State and Attorney General's argument that we should
    interpret 'ongoing emergency,' for Confrontation Clause
    purposes, in a way that would allow the use of testimonial
    hearsay narrating a past crime so long as the suspects are
    at large, even when neither the declarant nor victim is in
    danger. Such an expansive definition was implicitly
    rejected by the Davis Court. Indeed, in Davis, after the
    abusive husband fled his home, ending the immediate
    emergency, the Court declared that '[i]t could readily be
    maintained' that the wife's continuing remarks to the 911
    operator were testimonial statements. . . .

    "Our reading of Davis leads us to conclude that a
    declarant's narrative to a law enforcement officer about a
    crime, which once completed has ended any 'imminent danger'
    to the declarant or some other identifiable person, is
    testimonial. See [Davis, 547 U.S. at 827-828, 830] (noting
    that victim in Davis was facing 'a bona fide physical
    threat' while on 911 call whereas victim in Hammon did not
    have 'immediate threat to her person' while speaking with
    officer)."

State ex rel. J.A., 195 N.J. 324, 348-349 (2008).   See State v.

Lewis, 361 N.C. 541, 549 (2007) (primary purpose of on-scene

questions by police and answers by victim was not to resolve

ongoing emergency even though defendant's location was unknown);

State v. Koslowski, 166 Wash. 2d 409, 426-427 (2009) (en banc)

(mere fact that suspects were armed and at-large not sufficient
                                                                    28


to demonstrate that police questions and declarant-victim's

statements at scene were necessary to resolve ongoing

emergency).

    3.   Harmless error analysis.    "[I]f a constitutional right

has been preserved and there has been no waiver, then it can

only be ignored if we are convinced that the error was harmless

beyond a reasonable doubt."    Commonwealth v. Amirault, 424 Mass.

618, 649 (1997).   "Where the defendant's constitutional right to

cross-examine has been denied, the prosecution bears the burden

of establishing that the error was harmless."     Commonwealth v.

Vardinski, 438 Mass. 444, 452 (2003).    See Commonwealth v.

Brazie, 66 Mass. App. Ct. 315, 317 n.1 (2006).    Under this

standard, the "essential question" we ask is "whether the error

had, or might have had, an effect on the [fact finder] and

whether the error contributed to or might have contributed to

the [finding of guilty]."     Commonwealth v. Perrot, 407 Mass.

539, 549 (1990).   In order to meet the harmless error test, we

must be satisfied "beyond a reasonable doubt that the tainted

evidence did not have an effect on the [fact finder] and did not

contribute to the [fact finder's findings]."     Commonwealth v.

Tyree, 455 Mass. 676, 701 (2010).    Ultimately, the question "is

not whether, in a trial that occurred without the error, a

guilty verdict would surely have been rendered, but whether the

guilty verdict actually rendered in this trial was surely
                                                                    29


unattributable to the error" (citation omitted).     Commonwealth

v. Vasquez, 456 Mass. 350, 361 (2010).

     Contrary to the view expressed by the dissent, post

at        , the constitutional harmless error standard that

governs a confrontation clause violation is not satisfied simply

because the erroneously admitted evidence is cumulative of other

properly admitted evidence.   Instead, "[w]e consider several

factors to determine whether the error was harmless:     'the

importance of the witness'[s] testimony in the prosecution's

case, whether the testimony was cumulative, the presence or

absence of evidence corroborating or contradicting the testimony

of the witness on material points, the extent of cross-

examination otherwise permitted, and, of course, the overall

strength of the prosecution's case.'"     Vardinski, 438 Mass. at

452, quoting Commonwealth v. DiBenedetto, 414 Mass. 37, 40

(1992), S.C., 427 Mass. 414 (1998).     "We resolve all ambiguities

and doubts in favor of the defendant."     Vardinski, supra at 452-

453, citing Commonwealth v. Maxim, 429 Mass. 287, 291–292

(1999).

     First and foremost, the error in this case was not harmless

because the Commonwealth cannot demonstrate that other admitted

evidence of guilt is "'overwhelming,'" in the sense that it is

'so powerful as to "nullify any effect"' that the improperly

admitted evidence 'might have had' on the fact finder or the
                                                                    30


findings" (citations omitted).   Vasquez, 456 Mass. at 362,

quoting Tyree, 455 Mass. at 704 n.44.    See Commonwealth v.

Mendes, 463 Mass. 353, 358-359 (2012).    Here, without the

erroneously admitted evidence, the Commonwealth's case consisted

almost exclusively of a thirty-one-second recorded 911 call that

described a completed assault and battery.    The only other live

witness with firsthand knowledge was the defendant's son, who

testified that he was in the only bedroom on the first floor of

the home with the door locked during the time of the alleged

crime.

    Second, the erroneously admitted testimony by Officer

Barnes placed before the judge significant facts that were not

included in the statements made by the defendant's wife during

the first thirty-one seconds of her 911 call or in her initial

statements to Officer Barnes at the scene.    During the 911 call,

the defendant's wife stated that she was "choked" by the

defendant and that he threatened to kill her.   Her initial

statements to Officer Barnes repeated this information.

However, the improperly admitted statements, relayed through

Officer Barnes at trial, added that the defendant not only

"choked" his wife, but also attempted to strangle her, stuck her

head in a pillow in an attempt to suffocate her, and attempted

to forcibly shove a handful of pills down her throat.     The

erroneously admitted testimony by Officer Barnes also supplied
                                                                   31


the judge with a motive for the defendant's acts -- his belief

that his wife was a heroin addict and was in the company of

other heroin users.   This evidence went well beyond the scope of

his wife's statements made to the 911 dispatcher, and provided

the judge with independent bases on which the defendant could be

convicted under G. L. c. 265, § 13M.   See Instruction 6.275 of

the Criminal Model Jury Instructions for Use in the District

Court (2016).

    This is a case in which the erroneously admitted evidence

was not collateral or tangential -- it went to the heart of the

case.   See Commonwealth v. Thornley, 406 Mass. 96, 102 (1989).

In the absence of findings of fact to explain the reasons for

the judge's guilty finding in this case, we cannot say, beyond a

reasonable doubt, that the erroneously admitted evidence did not

contribute to the finding that the defendant was guilty.     See

DiBenedetto, 414 Mass. at 41.   Contrast Galicia, 447 Mass. at

747-748 (improperly admitted testimonial statements made to

responding officers at crime scene harmless beyond a reasonable

doubt where observations of officers, including that victim was

wounded and man wearing no shirt was standing in room with

overturned chairs, tended to show that domestic violence

incident had taken place, and on-scene statements of victim

served merely to corroborate information previously provided by

victim during 911 call).
                                                                  32


    Conclusion.   In order to understand the result we reach --

that a recorded 911 emergency telephone call in which the

defendant's wife reported that she had been physically attacked

by the defendant who allegedly threatened to return in fifteen

minutes and kill her, was admissible in evidence without

testimony by the declarant, but that most of her brief

conversation at the scene with Officer Barnes shortly thereafter

was not, and that as a result there must be a new trial, it is

important to consider what Justice Scalia wrote in Crawford v.

Washington, 541 U.S. 36, 61 (2004), in untangling the

confrontation clause from the rule against hearsay:

    "To be sure, the Clause's ultimate goal is to ensure
    reliability of evidence, but it is a procedural rather than
    a substantive guarantee. It commands, not that evidence be
    reliable, but that reliability be assessed in a particular
    manner: by testing in the crucible of cross-examination.
    The Clause thus reflects a judgment, not only about the
    desirability of reliable evidence (a point in which there
    could be little dissent), but about how reliability can
    best be determined."14

    14 This point -- that the confrontation clause demands more
than simply assurances of reliability with regard to statements
by the defendant's accusers, but also preserves the right of the
accused to encounter his accusers -- is critically important.
As the United States Supreme Court observed in Coy v. Iowa, 487
U.S. 1012, 1017 (1988), "The Sixth Amendment's guarantee of
face-to-face encounter between witness and accused serves ends
related both to appearances and to reality. This opinion is
embellished with references to and quotations from antiquity in
part to convey that there is something deep in human nature that
regards face-to-face confrontation between accused and accuser
as 'essential to a fair trial in a criminal prosecution'"
(citation omitted). See generally Herrmann and Speer, Facing
the Accuser: Ancient and Medieval Precursors of the
Confrontation Clause, 34 Va. J. Int'l L. 481, 481 (1994)
                                                                   33



    When a person is on trial and is charged with a crime, the

confrontation clause is much more than a judicial assurance that

a declarant's out-of-court statement is reliable.    Enforcement

of the confrontation clause "(1) insures that the witness will

give his statements under oath -- thus impressing him with the

seriousness of the matter and guarding against the lie by the

possibility of a penalty for perjury; (2) forces the witness to

submit to cross-examination, the 'greatest legal engine ever

invented for the discovery of truth'; . . . [and] (3) permits

the jury that is to decide the defendant's fate to observe the

demeanor of the witness in making his statement, thus aiding the

jury in assessing his credibility."   California v. Green, 399

U.S. 149, 158 (1970).   Likewise, the Supreme Judicial Court has

reasoned that cross-examination is "the principal means by which

the believability of a witness and the truth of his testimony

are tested."   Commonwealth v. Funches, 379 Mass. 283, 292

(1979), quoting Davis v. Alaska, 415 U.S. 308, 316 (1974).     See

United States v. Salerno, 505 U.S. 317, 328 (1992); United

States v. Caudle, 606 F.2d 451, 457 (4th Cir. 1979).




(debunking conventional belief that Sir   Walter Raleigh's
rejected demand to meet witness against   him "face-to-face" at
trial for treason in 1603 marked origin   of right to
confrontation, and explaining Roman and   Canon law origins of
confrontation clause).
                                                                  34


    Admitting testimonial evidence of significance without the

opportunity to cross-examine the source of that evidence -- in

this case his accuser -- deprived the defendant of his right to

confrontation and a fair trial.

                                   Judgment vacated.

                                   Finding set aside.
    BLAKE, J. (dissenting).     Because I believe that the

victim's statements to Fitchburg police Officer Keith Barnes

were properly admitted to enable the police to respond to an

ongoing emergency, and were therefore nontestimonial, I

respectfully dissent.    I agree with the majority's thoughtful

explanation that the statements in the admitted portion of the

911 call qualify as excited utterances, an exception to the

hearsay rule.   See Mass. G. Evid. § 803(2) (2018).   I also agree

that the victim's statements to Barnes made outside of the home

qualify as excited utterances.    However, unlike the majority, I

believe the statements to Barnes are nontestimonial because they

were "made in the course of police interrogation under

circumstances objectively indicating that the primary purpose of

the interrogation [was] to enable police assistance to meet an

ongoing emergency."     Davis v. Washington, 547 U.S. 813, 822

(2006).   "The existence of an ongoing emergency must be

objectively assessed from the perspective of the parties to the

interrogation at the time, not with the benefit of hindsight."

Michigan v. Bryant, 562 U.S. 344, 361 n.8 (2011).     When

considering whether the primary purpose of the police inquiry is

to meet an ongoing emergency, "the guiding consideration is

whether 'the information the parties knew at the time of the

encounter would lead a reasonable person to believe that there

was an emergency, even if that belief [is] later proved
                                                                   2


incorrect.'   Thus, the 'primary purpose' inquiry is divorced

from the subjective or actual intentions of the individuals

involved in a particular encounter."    Commonwealth v. Smith, 460

Mass. 385, 392 (2011), quoting Bryant, supra at 359, 361 n.8.

    Applying these constitutional principles to the facts here,

I believe that Barnes's testimony was nontestimonial.     The

victim had been recently strangled, and was still in distress

when the police arrived.   She displayed fear that the defendant

would make good on his promise and return to kill her.    There

was still a real potential of further danger to the victim, and

possibly to the police.    See Bryant, 562 U.S. at 363 (in

domestic violence cases, part of assessment of "the ongoing

emergency [is] from the perspective of whether there was a

continuing threat to [the victim]").   The questioning here was

rooted in the community caretaking function of the police.

Barnes was right to concern himself with obtaining a "rundown"

of the attack in an effort to locate the defendant and to

prevent further harm, particularly in the context of an

unsecured scene.    See Commonwealth v. Tang, 66 Mass. App. Ct.

53, 59-60 (2006).   Indeed, Barnes explicitly stated that "[t]he

main thing [he] was worried about was where is [the defendant]."

He also testified that during this conversation, the victim was

"hysterical," "extremely upset," and "crying."   Because of the

victim's emotional state, it was "tough" for Barnes "to figure
                                                                    3


out what was going on."    The victim, "like any person in [her]

position, would have been consumed by the immediacy of the

situation . . ., [therefore it] 'is almost inconceivable that,

moments after [the assault] . . . [she] could have spoken in

contemplation of a future legal proceeding.'"     Commonwealth v.

Nesbitt, 452 Mass. 236, 249 (2008), quoting Tang, supra at 60-

61.   On cross-examination, Barnes again confirmed that he

"wanted to make sure [the defendant] wasn't in the area."     See

Nesbitt, supra.

      The cases cited by the majority are not to the contrary.

Indeed, the facts in those cases stand in stark contrast to the

facts presented here -- an imminent threat to return to do more

harm.     Cf. Commonwealth v. Galicia, 447 Mass. 737, 745 (2006)

(victim's statements to officers were testimonial where officer

testified that when he arrived, he "determined that the scene

was safe").1    The fact that the defendant did not return to the

scene while the police officers were present is of no moment as

the question is whether "the information the parties knew at the




      1The fact that the victim refused medical attention does
not itself nullify the nature of the ongoing emergency. Rather,
"[t]he medical condition of the victim is important to the
primary purpose inquiry to the extent that it sheds light on the
ability of the victim to have any purpose at all in responding
to police questions . . . [and] provides important context for
first responders to judge the existence and magnitude of a
continuing threat to the victim, themselves, and the public."
Bryant, 562 U.S. at 364-365.
                                                                     4


time of the encounter would lead a reasonable person to believe

that there was an emergency, even if that belief was later

proved incorrect."     Commonwealth v. Beatrice, 460 Mass. 255,

259-260 (2011), quoting Bryant, 562 U.S. at 361 n.8.

       The ongoing nature of the emergency was also particularly

acute because the defendant strangled the victim before leaving

the scene.     Studies of domestic violence have found that "non-

lethal strangulation is an important predictor for future lethal

violence among women who are experiencing [intimate partner

violence]."     Glass, Laughon, Campbell, Block, Hanson, Sharps,

and Talliaferro, Non-Fatal Strangulation is an Important Risk

Factor for Homicide of Women, 35 J. of Emergency Med. 329, 335

(2008).     In fact, "the odds of becoming an attempted homicide

victim increased by 700 percent, and the odds of becoming a

homicide victim increased by 800 percent for women who had been

strangled by their partner."     Strack and Gwinn, On the Edge of

Homicide:    Strangulation as a Prelude, 26 Crim. Just. 32, 34

(Fall 2011).

       Given this, the defendant's threat to return to the home to

kill the victim underscores the emergency that existed at the

time.     See Davis, 547 U.S. at 827; Beatrice, 460 Mass. at 260-

262.    Put another way, the circumstances that Barnes encountered

qualified as an ongoing emergency extending beyond the

strangulation itself.     As such, the statements "were made 'in
                                                                    5


circumstances that reasonably negated premeditation.'"

Beatrice, supra at 258-259, quoting Commonwealth v. Santiago,

437 Mass. 620, 625 (2002).

    However, even if the statements were admitted in error,

they were cumulative of the properly admitted portion of the 911

call and the victim's initial statements to Barnes at the scene,

and thus harmless beyond a reasonable doubt.   See Commonwealth

v. Perez, 411 Mass. 249, 260-261 (1991) (even if erroneously

admitted, evidence that was merely cumulative was harmless

beyond reasonable doubt).    In Galicia, 447 Mass. at 747-748,

"[t]he victim's improperly admitted statements to the officers,

that her husband punched, choked, and kicked her, only

corroborated the properly admitted evidence -- her report of

abuse at the hands of her husband and officers' subsequent

observations.   Thus, the 'erroneously admitted evidence was

"merely cumulative" of evidence properly before the [fact

finder]'" (citation omitted).   As in Galicia, here, the victim's

statements were not evidence that "had, or might have had, an

effect on the [fact finder] and . . . contributed to or might

have contributed to the verdicts."   Commonwealth v. Perrot, 407

Mass. 539, 549 (1990).   Accordingly, to the extent that any

statements were improperly admitted, they were harmless beyond a

reasonable doubt, particularly in a bench trial.   See

Commonwealth v. Milo M., 433 Mass. 149, 152 (2001), quoting
                                                                   6


Commonwealth v. Colon, 33 Mass. App. Ct. 304, 308 (1992) (in

bench trial, "the legal framework in which facts are to be found

is not generally stated with the precision and amplitude of

instructions to a jury [and] it is presumed that the judge as

trier of fact applies correct legal principles").   For these

reasons, I respectfully dissent.
