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Vol. 90 No. 4

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Massachusetts Law Review

Criminal Law – Constitutional Objection

 Commonwealth v. Galicia, 447 Mass. 737 (2006) 

Last November, in Commonwealth v. Galicia, the Supreme Judicial Court (“SJC”) decided significant Sixth Amendment confrontation clause issues arising under the rule of Crawford v. Washington as construed by the United States Supreme Court in the then-recent case of Davis v. Washington. For that reason, Galicia will be much studied and frequently cited, but the case is noteworthy also for a wholly distinct reason which is the subject of this comment. It is the first Massachusetts case to provide a definition of the term “constitutional objection,” more than 40 years after the existence of such a procedural device was signaled by the Supreme Court in Douglas v. Alabama.

I. The Legal Background

One of the major accomplishments of the Supreme Court under Chief Justice Earl Warren, from 1953 to 1969, was the incorporation of most of the criminal justice protections of the Bill of Rights into the Fourteenth Amendment’s due process clause, thereby making those protections binding in all state prosecutions. The result was to place on the criminal procedure of every state a federal constitutional overlay which, in the context of a state criminal trial, might well require an evidentiary ruling completely at variance with the statute or common law of the particular state.
In Douglas, an Alabama case of assault with intent to murder, the prosecution had effectively put before the jury the confession of a nontestifying codefendant implicating Douglas as the shooter in the crime, without any opportunity for cross-examination of the codefendant by Douglas’ counsel. Defense counsel objected to “this purported confession on the grounds that it is hearsay evidence, that it was made outside the hearing of this defendant, [and] it was not subject to cross-examination.” The Alabama Court of Appeals agreed that the admission of the confession had been error violative of state law requiring confrontation and cross-examination of adverse witnesses. However, it held that the error had been “waive[d]” because Douglas’ counsel had not persisted in his objections. The Supreme Court granted certiorari and reversed, on the ground of the denial to Douglas of “the right of cross-examination secured by the Confrontation Clause.” In doing so, it stated the rule that “the adequacy of state procedural bars to the assertion of federal questions is itself a federal question.” It applied the principle “that an objection which is ample and timely to bring the alleged federal error to the attention of the trial court and enable it to take appropriate corrective action is sufficient to serve legitimate state interests, and therefore sufficient to preserve the claim for review here.”
Two years later, in Chapman v. California, the Supreme Court held that constitutional error would not automatically result in a new trial for the defendant, but would require a new trial unless the state could meet the burden to show that the error was harmless. Harmlessness in this context was to be gauged not according to the state “harmless-error” standard, but according to a uniform federal standard requiring reversal if there was a “reasonable possibility” that the constitutional error “might have contributed to the conviction.” The Supreme Court held that on such a standard, “before a federal constitutional error can be held harmless, the [appellate] court must be able to declare a belief that it was harmless beyond a reasonable doubt.”
Therefore, “constitutional errors that are preserved before or during trial are reviewed [by the appellate court] to determine whether they are harmless beyond a reasonable doubt.” This is a standard more favorable to a defendant on appeal than the “nonprejudicial error” standard applied to preserved “[n]onconstitutional errors.” The constitutional standard requires reversal if the error “might have had” an effect on the jury’s verdict. The nonconstitutional standard allows the commonwealth to avoid reversal if the appellate court is persuaded with “fair assurance” that the verdict was not “substantially swayed” by the error.

II. Preserving a Claim of Constitutional Error in the Trial Court

Regardless of the standard of review, one must first determine how constitutional error is “preserved” in the trial court. The question arises in the mind of every attorney who prepares a petition for certiorari to the Supreme Court, for a rule of the Court requires a petitioner seeking review of a state court judgment to specify the

stage in the proceedings ... in the court of first instance... when the federal questions sought to be reviewed were raised; the method or manner of raising them and the way in which they were passed on by [that] court[]; and pertinent quotations of specific portions of the record ... with specific reference to the places in the record where the matter appears ..., so as to show that the federal question was timely and properly raised....[]

With regard to evidence sought to be suppressed as unconstitutionally obtained, the manner of preservation is obvious. Suppression is sought by a pretrial written motion that must “state the grounds on which it is based.” Such a motion invariably states the specific federal and state constitutional provisions on which it is grounded. When the motion is denied prior to trial by a judge of the trial court, preservation of the constitutional issue or issues for appellate review is complete. The defense need not object when the evidence sought to be suppressed on constitutional grounds is introduced at trial.
More problematic are constitutional claims on appeal grounded on objections made in the heat of trial. Objections made in such contexts as the admission or exclusion of evidence, or curtailment of cross-examination, or claimed error in the judge’s instructions to the jury, rarely are accompanied by specification of any constitutional authority. Moreover, the SJC has undertaken numerous complex constitutional analyses without providing a clear description of the trial objection on which the constitutional claim on appeal was based. However, in the case of Commonwealth v. Fowler, it gave a detailed description of objections which failed to preserve a clear constitutional error, namely violations of the due process rule of Doyle v. Ohio.
In Fowler, the defendant was arrested in Seattle on a charge of murder and, after having been given Miranda warnings, was interrogated by a police detective and an FBI agent. Both the detective and the FBI agent testified, over defense objection, that the defendant answered some questions but, after being told by the detective that no one was going to believe him, declined to speak further. The SJC held that the defendant had thereby invoked his right to silence and that “it was a Doyle-type error for the two officers to mention that the defendant chose to [do so].”
Although objections had been made by defense counsel to the testimony of both the Seattle detective and the FBI agent, neither objection was sufficient to preserve the constitutional issue. Objections to the detective’s testimony were not based on the defendant’s right to remain silent, but on other grounds. In objecting to the FBI agent’s testimony, defense counsel “offered no ground,” and, although under the Rules of Criminal Procedure a party is not required to state the grounds for an objection, the result of the omission here was that the objection was not sufficient to “alert[] [the] judge” to the substance of the constitutional argument made on appeal. The defendant was therefore relegated, for appellate review of the constitutional error, to the standard for unpreserved error.
Fowler thus established the minimum requirement for an objection to qualify as a constitutional objection that it apprise the trial judge of the substance of the issue to be presented on appeal. It did not, however, indicate what language needs to be used to preserve the constitutional ground of the issue. That gap has now been filled by the SJC’s recent decision in Galicia.

III. The Factual Background of Galicia

Galicia presented the common situation of a 9-1-1 telephone call to the police by the victim of a domestic assault reporting the assault while it was in progress, followed by the response of police officers to the scene and their taking of statements from the victim there.
In those hearsay statements, the victim accused her husband, Carlos Galicia, of having pushed, choked and kicked her. The victim did not testify at trial, but the commonwealth filed a motion in limine to introduce her statements to the 9-1-1 dispatcher and to the responding officers. The judge, after hearing testimony on the motion from the two officers, ruled that the victim’s statements were admissible under the hearsay exception for “excited utterances” and granted the motion in limine over the defendant’s objection. The officers and a police dispatcher then testified to the victim’s hearsay accusations at a jury-waived trial held the same day before the same judge, who found the defendant guilty.
On appeal, the defendant claimed that, in light of the intervening decisions of the Supreme Court in Crawford v. Washington and Davis v. Washington, the admission at trial of the victim’s hearsay statements to the responding officers had violated his rights under the confrontation clause of the Sixth Amendment to the United States Constitution, and that he was therefore entitled to a reversal of his convictions unless the unconstitutionally admitted evidence could be held “harmless beyond a reasonable doubt.”

IV. Determining the Existence of a “Constitutional Objection”

The SJC held that, under Davis v. Washington, the victim’s hearsay statements to the responding officers had been “precluded from admission by the Sixth Amendment absent the unavailability of the witness and prior opportunity for the defendant to cross-examine her” and that the admission at trial of those statements had been constitutional error. But the commonwealth argued that the “harmless beyond a reasonable doubt” standard of review should not be applied because no “constitutional objection” had been preserved by the defendant at trial.
At trial, when the commonwealth introduced the victim’s statements to the responding officers, defense counsel had merely stated an objection “for the record.” Ordinarily, an objection “for the record” raises no issue for the appeal, because the appellate court perceives it as not reflecting actual dissatisfaction with the objected-to ruling of the trial judge. The SJC agreed with the commonwealth that “in most cases,” a general objection “for the record” would be “insufficient to preserve the constitutional claim.” However, it ruled that the “adequacy of the objection ha[d] to be assessed in the context of the trial as a whole,” and in this case, that meant examining what defense counsel had said at the hearing on the commonwealth’s pretrial motion in limine.
A motion in limine is a motion “at the threshold,” i.e., a motion heard just prior to the beginning of trial. It has been a part of Massachusetts’ criminal practice since the 1970s. It is designed to resolve, in advance, issues in the admission or exclusion of evidence that are likely to arise at trial. It is a useful procedural device but, for defense counsel in criminal cases, it can be a trap for the unwary. This is so because objection by defense counsel to the judge’s ruling on the motion in limine preserves nothing for appeal; the objection must be repeated at trial to preserve a ruling for appellate review. “It is well established that a motion in limine, seeking a pretrial evidentiary ruling, is insufficient to preserve appellate rights unless there is an objection at trial.”
Against the background of that rule of procedure, the objection of defense counsel in Galicia “for the record” is plainly recognizable as relating back to, and incorporating by reference, counsel’s oral objection to the evidence stated in the pretrial hearing on the commonwealth’s motion in limine. The SJC, therefore, looked to what was said by defense counsel in objecting to the hearsay statements at the hearing on the motion in limine. There defense counsel had “noted ... that admission in evidence of the victim’s statements to the police dispatcher and to responding officers was inadmissible hearsay that bore insufficient ‘indicia of reliability’ and deprived the defendant of the opportunity to ‘cross-examine’ the witness. Because defense counsel had used the “terminology and principles” that then governed confrontation clause analysis, he had “objected to the statements at issue with sufficient specificity to note an objection on constitutional grounds.”
The SJC relied on no case law authority in arriving in Galicia at its definition of a “constitutional objection” as one grounded in the “terminology and principles” of a particular constitutional doctrine. However, it noted as lending support to its “constitutional objection” ruling the fact that in Davis v. Washington, the Supreme Court had held sufficient to preserve a Sixth Amendment objection counsel’s contentious remark of dissatisfaction with the trial court’s ruling, where the remark contained the words “cross examine.”


The SJC’s ruling in Galicia that defense counsel had made a “constitutional objection” to the admission of the hearsay there at issue did not ultimately benefit the defendant, because the victim’s hearsay statements to the police dispatcher in the 9-1-1 call were held to have been properly admitted and her hearsay statements to the responding officers, though erroneously admitted, were held “harmless beyond a reasonable doubt.”
In stating a test for determining whether a “constitutional objection” has been made at trial, however, the SJC filled a procedural void which had lasted for more than 40 years and thereby provided valuable guidance for both trial and appellate defense counsel in criminal cases. The test emphasizes substance over form and is easy for trial counsel to meet. Counsel need simply explain the defendant’s entitlement to a particular evidentiary ruling or instruction by the judge and then object at trial to a denial of the ruling or instruction sought. The language of criminal procedure has become so thoroughly constitutionalized since the era of the Warren Court that a simple explanation by counsel that is rooted in federal or state constitutional doctrine will certainly qualify an ensuing objection as “constitutional” under Galicia.

Brownlow M. Speer


1. 447 Mass. 737 (2006).

2. 541 U.S. 36 (2004). The rule of Crawford is that, under the confrontation clause of the Sixth Amendment to the U.S. Constitution, “testimonial” hearsay cannot be admitted at trial against a criminal defendant unless (1) the declarant is unavailable and (2) the defendant had a prior opportunity to cross-examine the declarant. See id. at 53-54, 68.

3. 126 S.Ct. 2266 (2006). “Davis ... elucidated the distinction between nontestimonial (and therefore admissible) statements and testimonial (and therefore inadmissible) statements left open in Crawford.” Galicia, 447 Mass. at 738-39.

4. 380 U.S. 415 (1965).

5. Melvin Belli, The Law Revolution 29, 31, 175-76 (Leisure Books 1970).

6. See, e.g., Davis v. Alaska, 415 U.S. 308, 311, 314-19 (1974) (state statute protecting anonymity of juvenile offender outweighed by defendant’s federal constitutional right to cross-examine witness for possible bias); Chambers v. Mississippi, 410 U.S. 284, 294-98 (1973) (state common law rule precluding defendant from impeaching own witness interfered with defendant’s federal constitutional rights to present a defense and confront and cross-examine adverse witnesses).

7. Douglas, 380 U.S. at 416-17, 419-20.

8. Id. at 421 n.4.

9. Id. at 418.

10. Id.

11. Id. at 418-19.

12. Id. at 422; accord Osborne v. Ohio, 495 U.S. 103, 123-25 (1990).

13. Douglas, 380 U.S. at 422.

14. 386 U.S. 18 (1967).

15. Id. at 21-22.

16. Id. at 24.

17. Id. at 22-23.

18. Id. at 23, (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963)).

19. Id. at 24.

20. Commonwealth v. Molina, 439 Mass. 206, 211-12 (2003) (summarizing Commonwealth v. Vinnie, 428 Mass. 161, 163 cert. denied, 525 U.S. 1007 (1998)).

21. Vinnie, 428 Mass. at 163.

22. Molina, 439 Mass. at 212.

23. Vinnie, 428 Mass. at 163(quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1954)). Nonconstitutional errors that are properly preserved are reviewed according to a nonprejudicial error standard. An error is nonprejudicial only if the court is sure that the error did not influence the jury, or had but a very slight effect. Vinnie, 428 Mass. at 163. The nonprejudicial error standard is derived ultimately from Kotteakos v. United States, 328 U.S. 750, 764-65 (1946). See Commonwealth v. Alphas, 430 Mass. 8, 13-14 n.7 (1999); id. at 23 (Greaney, J., concurring); Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983). It is a “less onerous” standard for the commonwealth to meet than the standard of Chapman for constitutional error. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

24. Sup. Ct. R. 14(1)(g)(i).

25. Mass. R. Crim. P. 13(a)(2).

26. State constitutional errors must also be held “harmless beyond a reasonable doubt” to avoid reversal. See Commonwealth v. McGrail, 419 Mass. 774, 777-80 (1995).

27. Commonwealth v. Martin, 447 Mass. 274, 279 (2006); Commonwealth v. Whelton, 428 Mass. 24, 25-26 (1998). The rule is otherwise with respect to a pretrial motion in limine seeking the exclusion of evidence on nonconstitutional grounds. See infra. notes 62-63 and accompanying text.

28. Compare Commonwealth v. Johnson, 365 Mass. 534, 540-42 (1974), and Commonwealth v. Joyce, 382 Mass. 222, 226 n.4 (1981)(where the colloquies between defense counsel and the trial judge underlying the constitutional claim on appeal are set out in their entirety and in substantial part, respectively).

29. See, e.g., Commonmwealth v. Nolin, 448 Mass. 207, 217-20 (2007); Commonwealth v. Peixoto, 430 Mass. 654, 657-61 (2000); Commonwealth v. Miles, 420 Mass. 67, 70-73 (1995); Commonwealth v. Moreira, 385 Mass. 792, 794-97 (1982); Commonwealth v. Munoz, 384 Mass. 503, 505-10 (1981); Commonwealth v. Funches, 379 Mass. 283, 291-94 (1979); Commonwealth v. Marini, 375 Mass. 510, 516-19 (1978).

30. 431 Mass. 30 (2000).

31. 426 U.S. 610 (1976).

32. E.g., Miranda v. Arizona, 384 U.S. 436, 479 (1966)(warnings required to be given to a defendant in custody before any police interrogation of the defendant may take place).

33. Fowler, 431 Mass. at 38.

34. Id. at 36-37, 40.

35. Id. at 38.

36. Id. at 39. The rule of Doyle is that the use for impeachment purposes of a defendant’s silence after having received Miranda warnings violates the defendant’s rights under the due process clause of the Fourteenth Amendment. Doyle, 426 U.S. at 619. An analogous state constitutional rule exists under Article 12 of the Massachusetts Declaration of Rights. See Peixoto, 430 Mass. at 658-59.

37. Fowler, 431 Mass. at 40-41.

38. Id. at 40-41 & n.19.

39. Id. at 40-41 & nn.17, 19. Defense counsel’s first objection was that the interchange between the detective and the defendant was not contained in any report. See id. at 40 n.17. The next objection was that the detective had opined in the question that triggered the defendant’s invocation of the right to remain silent that he (the detective) found the defendant’s story “incredible.” See id.

40. Fowler, 431 Mass. at 40-41.

41. Id. at 41 n.19; see Mass. R. Crim. P. 22; Opinion of the Justices to House of Representatives, 378 Mass. 892 (1979).

42. See Fowler, 431 Mass. at 41 n.19 (citing cases).

43. Id. at 42 & n.20. In a capital case (a case in which the defendant was convicted of murder in the first degree), the standard for reversal on the basis of unpreserved error is denominated a “substantial likelihood of a miscarriage of justice.” See Mass. Gen. Laws c.278, § 33E (2006); Fowler, 431 Mass. at 42. In a non-capital case, the unpreserved error standard is called a “substantial risk of a miscarriage of justice.” Commonwealth v. Lennon, 399 Mass. 443, 448-49 n.6 (1987). The former may be somewhat more advantageous to a defendant-appellant than the latter, but the difference, if any, has never been the subject of detailed analysis by the SJC. See Id., 399 Mass. at 449 n.6. The “substantial risk” standard puts the burden on the defendant to show that unpreserved error could have “materially influence[d]” the guilty verdict. Alphas, 430 Mass. 8, 13, 23 (1999) (Greaney, J., concurring).

44. Commonwealth v. Galicia, 447 Mass. 737, at 740-41 (2006).

45. Id. at 738, 741.

46. Id. at 738.

47. Id. at 739.

48. Id. at 739-40 & nn.6, 7.

49. Id. at 740 & n.7, 747.

50. 541 U.S. 36 (2004). The Crawford decision was handed down after the trial of the Galicia case. Galicia, 447 Mass. at 747 (referring to objection at trial based on case law that “then governed confrontation clause analysis” and citing Ohio v. Roberts, 448 U.S. 56, 66 (1980) abrogated by Crawford v. Washington, 541 U.S. 36 (2004)).

51. 126 S.Ct. 2266 (2006).

52. Galicia, 447 Mass. at 745-46. After the decision in Davis, the defendant withdrew his confrontation clause challenge to the statements made by the victim in the 9-1-1 call, see id. at 745 n.15, but the SJC considered it anyway. See id. at 737, 745-46.

53. Id. at 746.

54. Id. at 745-46.

55. Id. at 746.

56. Id.

57. Commonwealth v. Olszewski, 416 Mass. 707, 721-22 (1993), cert. denied, 513 U.S. 835 (1994)  (error for judge to discharge juror without a hearing, but defense counsel’s subsequent objection “for the record” to juror’s having been excused outside defendant’s presence indicated no prejudice in absence of motion for mistrial or request for remedial measure) ; Commonwealth v. MacKenzie, 413 Mass. 498, 508-09 (1992) (defense counsel did not raise “proper objection” to challenged testimony where, after placing objection to it “on the record,” he went on “virtually to concede” its admissibility, rendering his “objection ... essentially form over substance”).

58. Galicia, 447 Mass. at 746.

59. Id. (quoting Commonwealth v. Koney, 421 Mass. 295, 299 (1995)).

60. Id. at 746-47.

61. The Latin word limen means “threshold”. See Langenscheidt’s Shorter Latin Dictionary 188 (1955).

62. This is so even if the issue is fully presented by the motion in limine and ruled on in that context with finality by the eventual trial judge. See, e.g., Commonwealth v. Hardy, 47 Mass. App. Ct. 679, 679-81 (1999).

63. Whelton, 428 Mass. at 25(citing Commonwealth v. Keniston, 423 Mass. 304, 308 (1996)).

64. Galicia, 447 Mass. at 746-47. As to the oral nature of the objection, see id. at 739 & n.5.

65. Id. at 746-47.

66. Id. at 747.

67. Prior to the Supreme Court’s decision in Crawford, hearsay was not barred under the Constitution from use against a criminal defendant, notwithstanding the Sixth Amendment confrontation clause, “on a mere judicial determination of [its] reliability.” Crawford, 541 U.S. at 62; see id. at 60-65 (overruling in part Ohio v. Roberts, 448 U.S. 56 (1980)).

68. Galicia, 447 Mass. at 746.

69. See id. at 746-47.

70. Id. at 747 (“That doesn’t give us the opportunity to cross examine.... Makes me mad”) (citing Davis, 126 S.Ct. at 2266, 2272).

71. Id. 447 Mass. at 744-45.

72. Id. at 746-48.


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