Commonwealth v. Belmer, October 14, 2010
78 Mass. App. Ct. 62
Daye rule, Affidavits Submitted in Support of Abuse Prevention Orders, Prior Inconsistent Statements, Sufficiency of Evidence
The defendant was charged with assault and battery. At trial, the mother of the victim sought to recant her claims made to obtain the abuse prevention order against the defendant, claiming that the defendant had accidentally hit the victim while talking with his hands instead of intentionally striking the victim. The prosecutor sought and was allowed to introduce the mother’s prior testimony from the hearing for the abuse prevention order and the affidavit submitted in support of the order despite the defendant’s objection. The judge later found the defendant guilty of assault and battery. On appeal, the defendant challenged the extension of the rule established in Commonwealth v. Daye, 393 Mass. 55 (1984), which allows a prior inconsistent statement to be used substantively if the declarant is available for cross-examination, to include affidavits from a request for an abuse prevention order. The defendant also challenged the sufficiency of the evidence for his conviction.
Facts
On May 18, 2009, Boston Police officers and an Emergency Medical Technician (EMT) responded to a call for domestic violence at the defendant’s home. When they arrived, they found the victim, a 15 year-old boy, with a bleeding lip. The victim was transported to the hospital, where his wound was closed with 10 stitches. The victim reported to the EMT, the police officer, and the hospital that the defendant had struck him in the face with his fist.
The next day the victim’s mother went to court and obtained an abuse prevention order, under G.L.c. 209A, against the defendant, her husband. As part of the process to obtain the order, the mother submitted an affidavit sworn under penalty of perjury. The affidavit stated that the mother and the defendant had been arguing about the defendant’s infidelity, when the argument became violent. The victim intervened to protect his mother. The defendant eventually punched the victim in the face, leaving the victim dazed. At a hearing, the mother repeated the claims under oath before a judge.
Reliability of Affidavits in Support of Abuse Prevention Orders
The Court concludes that the affidavits submitted in support of an abuse prevention order were reliable. The affidavits must be signed under the pains and penalties of perjury, are in writing (which eliminates concerns about whether the statement was actually made), and are part of a complaint that must be brought in a court before a judge (which makes the proceedings more formal then grand jury proceedings, from which testimony has been allowed in under the Daye rule).
The Court, then, proceeded to reject the defendant’s arguments about the reliability of the affidavits. First, rejecting the argument that the affidavits were part of a civil proceeding that was less serious and therefore, less reliable, the Court found that the abuse prevention order had serious consequences – the potential loss of one’s residence after an order in issued and the possibility of being jailed for up to two and a half years for violating the order.
The defendant’s second argument was that the guidelines for abuse prevention proceedings required “unique deference”, which made the proceedings unreliable. The Court rejected this argument finding that there is a need for sensitivity in the abuse prevention proceedings and the proceedings are still more formal than grand jury proceedings.
Lastly, the defendant argued that the victim-witness advocate’s role in facilitating the testimony made the testimony less accurate because the advocate may have coached the victim. The Court rejected this argument because the defendant did not submit any evidence to support the claim that the mother was coached. Furthermore, the Court found there was no difference between the affidavits and testimony given to the grand jury, where there it was also possible for the witness to be influenced.
Whether the Daye Criteria was satisfied
The Court next considered whether the criteria from Daye v. Commonwealth, 393 Mass. 55 (1984), were satisfied and the affidavit was properly admitted. Daye requires the declarant be subject to cross-examination and the prior statement be in the declarant’s own words before the statement is admitted. The Supreme Judicial Court later noted that the sufficiency of the evidence should be determined by considering corroborative evidence, when the statement is related to an essential element of the crime.
In this case, there was not a dispute as to whether the mother wrote the affidavit herself. However, the defendant claimed that he was not allowed to fully cross-examine the mother and that the judge abused his discretion by limiting the defendant’s cross-examination of the mother. The Court rejected this argument finding that the defendant only needed to be provided with an opportunity for cross-examination; the Sixth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights do not guarantee a right to an effective cross-examination. The mother testified that because she was angry with the defendant when she made the claims in her c. 209A affidavit and asserted that the defendant never punched the victim. The Court found that this was sufficient for the judge to understand that the mother was recanting her claims made in the affidavit. The Court also stated that the judge did not abuse his discretion when limiting the cross-examination into the mother’s truthfulness because a witness cannot be asked to evaluate the credibility of her or other witnesses’ testimony.
Sufficiency of the Evidence
The defendant also challenged the sufficiency of the evidence for his conviction. The Court rejected this argument finding that the affidavit was corroborated by the actual injury caused to the victim and the medical records, which also included the victim’s statements that the defendant had hit the victim in the face with his fist.
The Court affirmed the defendant’s conviction.
- Prepared by JM
