Commonwealth v. Santiago

Cowin, J.

(dissenting). While I do not differ with the court’s identification of the factors that determine the admissibility of a statement under the spontaneous utterance exception to the hearsay rule, I do not agree with the way in which the court today applies these factors. I cannot join the court’s opinion because it stretches the spontaneous utterance exception to the hearsay rule beyond its intended purpose. The statement by the victim’s mother allegedly repeating the defendant’s statement is the antithesis of a remark that speaks “what comes spontaneously to mind, without energy or disposition to invent lies.” Commonwealth v. Carrasquillo, 54 Mass. App. Ct. 363, 368 (2002).

As the Appeals Court concluded, “the declarant had ample time, opportunity and motive to think about her boyfriend’s situation and to contrive a story in an effort, however naive and ill-conceived, to exonerate him.” Commonwealth v. Santiago, 52 Mass. App. Ct. 667, 675 (2001). The words of the statement itself, the effort of an ally of the defendant to protect him, have indicia of fabrication and contrivance that should be considered in determining its spontaneity. See 2 McCormick on Evidence § 272, at 208 (5th ed. 1999) (“Although not grounds for automatic exclusion, evidence that the statement was . . . self-serving is an indication that the statement was the result of reflective thought” [footnote omitted]). This is not an emotionally generated outcry but an attempt to explain the incident. It is *629 the declarant’s repetition of a statement of another person and represents an intellectual judgment by the declarant that that statement is relevant and merits repeating. As the Appeals Court correctly determined, “in the circumstances, the statement simply does not exhibit the indicia of solid reliability that is both the hallmark of and the raison d’etre for the excited utterance exception to the hearsay rule.” Commonwealth v. Santiago, supra at 676 .

I share the Appeals Court’s reluctance to challenge the trial judge’s thoughtful decision as to admissibility, an issue on which she had broad discretion. But the admission of this statement exceeds the bounds of an exception that has already been extensively broadened. The judge did not give adequate weight to the obvious thought that had preceded the witness’s statement. The admission of the statement as a spontaneous utterance constituted an abuse of discretion, and as the Appeals Court also concluded, I “cannot say with fair assurance that the jury’s ‘judgment was not substantially swayed by the error’ . . . [and] that the judge’s error in admitting the improper testimony was not prejudicial.” Id. at 678 , quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). I would, therefore, reverse the conviction of indecent assault and battery on a child under fourteen years of age.