Whether admission of a 911 call made by the alleged victim of an assault and battery from a neighbor’s house violated the defendant’s right of confrontation.

After a physical fight between the defendant and the alleged victim, his girlfriend, the victim ran to a neighbor’s house and made a 911 call. On the call, the victim was out of breath, and said that her boyfriend just beat her up. In answers to the dispatcher’s questions, she gave the defendant’s name, said that he was still in her apartment and that she needed an ambulance, and asked the dispatcher to “send the cops now before he leaves.”

The prosecutor did not call the victim to testify, but played her 911 tape to the jury, over objection. The defendant appealed, the Appeals Court upheld the conviction, and the SJC granted the defendant’s request for further appellate review. 75 Mass. App. Ct. 153.

(Note that the defendant’s Appeals Court brief, carried over to the SJC, addresses various other arguments; the SJC granted review only of issues relating to the 911 call.)

The defendant does not directly challenge the trial judge’s finding that the 911 tape was admissible as an excited utterance. He argues, however, that the tape was testimonial, dealing with a past event rather than a present emergency, and therefore violated his right to confront those testifying against him, citing Davis v. Washington, 547 U.S. 813 (2006). The Appeals Court held, considering the factors in Davis, that the 911 call was primarily meant to meet an ongoing emergency rather than secure testimony: it was reasonable to infer from the limited call that the victim was still in danger from the defendant; the questions were oriented at securing the scene rather than gathering evidence; and the conduct of the interview was informal.

On balance, the Appeals Court conclusion that the 911 call was intended to stabilize an ongoing emergency, rather than obtain evidence of a prior crime, seems reasonable. It will be interesting to see what feature of that decision prompted the Court to grant further review.

As a side note, the legal fiction of past convictions for impeachment wore particularly thin in this case. In a prosecution for assault and battery, the Commonwealth was apparently permitted to impeach the defendant’s character for truthfulness — but not, of course, demonstrate his propensity for committing assault and battery — by introducing testimony that he had been convicted of assault and battery three years earlier. Unless there is some mitigating fact not in the defendant’s brief (which may well be, because the defendant did not object on appeal), this seems like a case where the use of prior convictions for impeachment was blatantly prejudicial. Such impeachment is difficult to challenge on appeal, of course, being within the sound discretion of the judge.