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Appeals court hears dispute over phone-call evidence and prosecutor remarks in stabbing prosecution
Summary
At oral argument in Commonwealth v. Alexis Gonzales (docket 24P473), defense counsel argued the trial court erred by treating a victim's phone call as an excited utterance and by allowing the prosecutor's closing to imply the defendant's failure to testify; the Commonwealth urged the panel to affirm. The court took the case under advisement.
A three-justice panel of the appeals court heard competing arguments on whether a victim's out-of-court phone statement was admissible and whether the prosecutor's closing argument impermissibly commented on the defendant's choice not to testify.
Defense counsel Joseph Hasson told the court the phone call "was just a phone call where the woman picked up the phone, the victim, and said, you know, I've been stabbed. You need to pick your son up," and argued the trial judge applied a subjective, rather than the required objective, "primary purpose" test to find the statement nontestimonial and then admitted it as an excited utterance. "I believe the judge in deciding the case uses the subjective part of the test where he should have used…
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