Commonwealth v. Alexis Gonzalez.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-473

COMMONWEALTH

vs.

ALEXIS GONZALEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of assault

and battery with a dangerous weapon, G. L. c. 265, § 15A (b)

(count one), and assault and battery on a family or household

member, G. L. c. 265, § 13M (a) (count two), for stabbing the

victim, Stephanie Orellana. He was sentenced to serve two to

two and one-half years in State prison on count one, and a

concurrent probationary period of three and one-half years on

count two. On appeal, the defendant claims that the judge erred

in admitting testimonial hearsay statements made by the victim,

who did not testify, and that the Commonwealth, during its

closing argument, impermissibly commented on the defendant's

decision not to testify at trial. We affirm.
Discussion. 1. Excited utterance. The defendant claims

that the judge erred in concluding that the victim's statements

to Wilmaris Murcia over the telephone were admissible as excited

utterances.1 We disagree.

Under the excited utterance (or spontaneous utterance)

exception to the rule against hearsay, "[a] spontaneous

utterance will be admitted in evidence 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 and not the

result of reflective thought'" (citation omitted). Commonwealth

v. Santiago, 437 Mass. 620, 623 (2002). "[T]he statements need

not be strictly contemporaneous with the exciting cause; they

may be subsequent to it, provided there has not been time for

the exciting influence to lose its sway and to be dissipated."

Commonwealth v. Sellon, 380 Mass. 220, 229-230 (1980), quoting

Commonwealth v. McLaughlin, 364 Mass. 211, 223 (1973). See

Commonwealth v. Brum, 492 Mass. 581, 595-596 (2023). A judge

has broad discretion in determining whether the foundational

requirements for admissibility under the excited utterance

1 Murcia testified that, during a telephone conversation
with the victim on the day of the incident, the victim told
Murcia that she had been stabbed by the defendant.

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exception have been met. See Commonwealth v. Brown, 413 Mass.

693, 696 (1992).

The defendant does not dispute that the stabbing

constituted a sufficiently startling event to give rise to an

excited utterance. Rather, he contends that (1) the exciting

influence had dissipated by the time the victim called Murcia,

as evidenced by (a) the victim's ability to place the call

without interference from the defendant, and (b) the defendant's

being calmly seated on the couch at the time of Murcia's

arrival; and (2) the victim was capable of engaging in

reflective thought at the time of the call, as evidenced by her

focus on protecting the children under her care, rather than

seeking assistance in contacting the police or medical personnel

for her personal wellbeing.

We are unpersuaded by the defendant's argument that the

exciting influence had dissipated at the time of the victim's

telephone call. First, the fact that the victim was able to

place the call without interference from the defendant does not

remove her statements from the realm of excited utterances. See

Commonwealth v. Wilson, 94 Mass. App. Ct. 416, 422 (2018)

(startling event need not be ongoing when declarant made

statement). Second, the fact that the defendant was calmly

seated at the time of Murcia's arrival is minimally probative of

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the magnitude of the exciting influence at the time of the call,

approximately twenty minutes earlier.

Furthermore, we do not discern clear error in the judge's

factual findings that the victim placed the call "fairly

recent[ly]" after the alleged stabbing, and that she was crying

and upset from an untreated stab wound at that time. See

Commonwealth v. Tremblay, 480 Mass. 645, 655 (2018) (we defer to

judge's subsidiary findings of fact drawn from testimonial

evidence unless clearly erroneous). In light of these findings,

we conclude that the judge acted well within his broad

discretion in determining that the exciting influence had not

lost its sway over the victim at the time of her telephone

conversation with Murcia. See Commonwealth v. Sanchez, 96 Mass.

App. Ct. 1, 7 (2019) (frantic tone and tears during 911 call

indicated victim still under stress of startling event).

We are likewise unpersuaded by the defendant's contention

that the victim's attempt to protect the children under her care

was more likely to stem from reflective thought than spontaneous

reaction. To the contrary, the latter seems entirely natural,

and we find no support for the defendant's position. The judge

did not err in admitting the victim's statements under the

excited utterance exception.

2. Confrontation right. Next, the defendant claims that

the victim's statements to Murcia were testimonial, and

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therefore their admission, even if permissible as excited

utterances, violated his right to confront a witness testifying

against him.2 We disagree.

"Testimonial statements are those made with the primary

purpose of 'creating an out-of-court substitute for trial

testimony'" (citation omitted). Commonwealth v. Wardsworth, 482

Mass. 454, 464 (2019). "The test is an objective one; we

examine 'the primary purpose that a reasonable person would have

ascribed to the statement, taking into account all of the

surrounding circumstances'" (citation omitted).3 Id. In

reviewing a judge's determination whether a statement was

2 Confrontation rights under art. 12 of the Declaration of
Rights of the Massachusetts Constitution are coextensive with
those under the Sixth Amendment to the United States
Constitution. See Commonwealth v. Nardi, 452 Mass. 379, 388
n.10 (2008).

3 As recognized in Wardsworth, the Supreme Judicial Court
previously used a different test, which, at least for statements
not made to law enforcement personnel, asked whether "a
reasonable person in the declarant's position would anticipate
his statement being used against the accused in investigating
and prosecuting a crime." 482 Mass. at 464 n.18, quoting
Commonwealth v. Gonsalves, 445 Mass. 1, 3 (2005), cert. denied,
548 U.S. 926 (2006). The defendant asks us to apply the
Gonsalves test here. But, in response to the decision in
Michigan v. Bryant, 562 U.S. 344, 358 (2011), the Wardsworth
court "clarif[ied] that the appropriate method of analysis is
the 'primary purpose' test." Wardsworth, supra. Courts still
occasionally observe that, in particular circumstances, the
result might be the same if the question were (as in Gonsalves)
how a reasonable person in the declarant's position would have
anticipated her statement being used. See Commonwealth v.
McGann, 484 Mass. 312, 318 (2020). We need not reach that issue
here.

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testimonial, "[w]e accept the judge's findings of fact unless

clearly erroneous but independently apply constitutional

principles to the facts found" (quotation and citation omitted).

Commonwealth v. McGann, 484 Mass. 312, 317 (2020).

Here, the fact that the victim made the statements

informally to someone that she apparently considered to be a

friend, and not to law enforcement, weighs heavily in favor of

such statements being nontestimonial. See Commonwealth v. Hart,

493 Mass. 130, 146 (2023). Additionally, although "[a]n ongoing

emergency is not necessary for a statement to be nontestimonial,

. . . when one is present it takes a central place in our

analysis." Commonwealth v. Rand, 487 Mass. 811, 817 (2021).

"The reason for this is straightforward: when preoccupied by an

ongoing emergency, a victim is unlikely to have the presence of

mind to create a substitute for trial testimony." Id.

The judge did not err in determining that the victim was

facing an ongoing emergency at the time of the telephone call.

It was reasonable for the judge to infer that the telephone call

occurred soon after the stabbing, and it is undisputed that the

defendant and two children remained on the premises at that

point in time. See Commonwealth v. Middlemiss, 465 Mass. 627,

634 (2013) ("Factors bearing on the existence of an ongoing

emergency include [1] whether an armed assailant poses a

continued threat to the victim or the public at large, [2] the

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type of weapon that has been employed, and [3] the severity of

the victim's injuries or medical condition"). That the

defendant "was not continuing in his assaultive behavior" does

not preclude the finding of an ongoing emergency. See

Commonwealth v. Beatrice, 460 Mass. 255, 261 (2011) (ongoing

emergency continued while assailant remained present on scene).

Thus, viewing the evidence objectively, we agree with the

judge's conclusion that the victim's primary purpose in making

the statements was to tend to the ongoing emergency, and not to

create an out-of-court substitute for trial testimony. There

was no violation the defendant's confrontation rights.

3. Closing argument. Finally, the defendant claims that

the Commonwealth, during its closing argument, impermissibly

commented on the defendant's decision not to testify at trial.4

As the defendant did not object to the prosecutor's remark at

trial, we review to determine if there was error, and if so,

4 Specifically, the defendant takes issue with the following
remark: "[The victim] is not the only person who can tell you
what happened that night. There are a number of witnesses who
can tell you what happened that night, and two of them did,
because although [the victim] isn't here and didn't testify
today, and, again, I'd ask you not to speculate about the
reasons why, you did hear from Ms. Murcia, and Ms. Murcia told
you what [the victim] had told her." The defendant claims that
the prosecutor's reference to "a number of witnesses" implicitly
included the defendant, and the statement therefore amounted to
an impermissible comment on the defendant's decision not to
testify.

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whether it created a substantial risk of a miscarriage of

justice. Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016).

"As a general rule, a prosecutor . . . cannot make
statements that shift the burden of proof from the
Commonwealth to the defendant. Such burden shifting
typically arises where a prosecutor offers direct comment
on the defendant's decision not to testify, or calls the
jury's attention to the defendant's failure to call a
witness or witnesses, or . . . to contradict testimony. In
these cases, the prosecution is signaling to the jury that
the defendant has an affirmative duty to bring forth
evidence of his innocence, thereby lessening the
Commonwealth's burden to prove every element of a crime"
(quotations and citations omitted).

Commonwealth v. Johnson, 463 Mass. 95, 112 (2012). However,

"[a] prosecutor is entitled to emphasize the strong points
of the Commonwealth's case and the weaknesses of the
defendant's case, even though he may, in so doing, prompt
some collateral or passing reflection on the fact that the
defendant declined to testify. The question is whether the
challenged remark, when viewed in the context of the entire
argument, is directed more at the general weakness of [the
defendant's] defense than toward the defendant's own
failure to testify" (quotations and citations omitted).

Commonwealth v. Nelson, 468 Mass. 1, 12 (2014).

Here, the challenged remark, viewed in context, was

directed at the weakness of the defendant's defense rather than

his choice not to testify. Defense counsel, in her closing

argument, highlighted the victim's failure to testify, stating

that she was the "only person who could tell [the jury] her

stand [sic] what happened" on the evening of the incident. The

challenged remark merely rebutted this assertion. The thrust of

the prosecutor's statement was not that the defendant was among

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the group of individuals with knowledge of the relevant events,

but rather that the victim was not the only person with such

knowledge, and that others with such knowledge testified.

Contrast Commonwealth v. Cruz, 98 Mass. App. Ct. 383, 390-391

(2020) (improper for prosecutor to focus jury's attention on

fact that, although victim and defendant could testify to

relevant events, only victim had done so).

We also note that the judge instructed the jury that the

defendant was presumed innocent, that "the defendant is not

required to prove his innocence, and . . . has no burden to call

any witnesses or produce any evidence," and, in explaining that

the defendant "has an absolute right not to testify," that "[i]t

is not up to the defendant to prove that he is innocent."

"These instructions, to which we presume the jury adhered,

effectively neutralized any prejudice produced by the

prosecutor's [statement]" (citation omitted). Johnson, 463

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Mass. at 114. There was no error, let alone one that created a

substantial risk of a miscarriage of justice.

Judgments affirmed.

By the Court (Blake, C.J.,
Meade & Grant, JJ.5),

Clerk

Entered: May 2, 2025.

5 The panelists are listed in order of seniority.

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