COMMONWEALTH vs. JUAN E. CRUZ.

LAURENCE, J. Shortly after noon on Thursday, January 25, 1996, six-year-old Eric Dawood died, the victim of violent physical abuse. Although Eric's body revealed numerous blunt force injuries, the cause of death was (in the opinion of the medical examiner) peritonitis arising from a ruptured duodenum. The rupture had resulted from a severe blow to Eric's abdomen -- most likely a kick, stomp, or other rapid and forceful blow -- inflicted twelve to forty-eight hours before his death.

A grand jury returned a four-count indictment against the defendant, Juan E. Cruz, who was the live-in boyfriend of Eric's mother, Melissa Dawood. The indictment charged Cruz with first-degree murder (G. L. c. 265, § 1), assault and battery on a child under fourteen causing substantial bodily injury (G. L. c. 265, § 13J), and two counts of assault and battery on a child under fourteen causing bodily injury (G. L. c. 265, § 13J). The same grand jury also indicted Melissa for wantonly and recklessly allowing Cruz to commit bodily injury on Eric (G. L. c. 265, § 13J) on the occasions specified in Cruz's indictment.

At Cruz's six-day trial in January, 1999, the main witness against him was Melissa (who had pleaded guilty to the charges of wantonly and recklessly allowing the abuse of her child, but had not yet been sentenced). After almost four days of deliberations, the jury returned guilty verdicts against Cruz for second-degree murder and for assault and battery on a child under fourteen causing substantial bodily injury. On appeal, Cruz raises numerous issues, only one of which deserves our serious attention; but that one involves error of such significance and prejudice that we are constrained to reverse his convictions.

The principal evidence against the defendant. The critical issue presented to the jury at trial was whether Cruz or Melissa -- each of whom accused the other of causing Eric's injuries and death -- was responsible for an ongoing pattern of physical abuse culminating in the fatal blow. Melissa was the only witness to claim to have seen Cruz physically abuse Eric.

She testified that she had invited Cruz to live with her in

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December, 1995. At first, he had helped her care for Eric and had generally treated them both well. On January 19, 1996, however, Cruz admitted to her that he had hit Eric for "poop[ing] his pants." Melissa noticed red marks on Eric's face, shoulders and side that became darker overnight. Rather than let her mother and sister see the marks, Melissa decided not to take Eric to visit them the next day, as she had planned, but instead told them that Eric and Cruz were having a "guys' day out." [Note 1] On the evening of January 21, 1996, Melissa observed Cruz playing what she called a "pinching game" with Eric. The next morning, she noticed that the back of Eric's legs, or his thighs, were severely bruised from the "pinching." [Note 2] Hoping to hide the many bruises from the teachers at Eric's school, because she feared that their exposure would cause Eric to be taken away from her by the Department of Social Services (DSS) (with which she had had previous involvement not developed in the record), Melissa called the school to say Eric had the flu and would be out all week.

Two days later, on January 24, 1996, Eric became ill (this still according to Melissa's testimony), was lethargic, complained of a stomach ache, and could not hold down food or water. He did manage to walk to his bedroom that evening with Cruz, and Melissa heard Eric giggling as Cruz put him to bed. Late in the morning of Thursday, January 25, 1996, Cruz woke Melissa and told her that Eric had urinated in his bed. Together they carried Eric, who could not stand, walk or speak, to the bathroom to wash him. They then carried him back to his bedroom. As they were trying to dress Eric in clean clothes, Cruz noticed that the child had stopped breathing. Cruz yelled to a friend, who had dropped by the apartment, to call an ambulance. As the ambulance was arriving a short time later, Cruz instructed Melissa to tell the authorities that Eric had fallen down the stairs, and then Cruz ran down the back stairs and out of the building.

Police officers, who came on the scene shortly after the

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emergency medical technicians (EMTs), testified that they found Eric with his eyes open and rolled back in his head, cold to the touch, lifeless and unresponsive to CPR. They also noticed bruises on his chest and face, a bite mark on his left shoulder, and a "real swollen" stomach. Melissa stood behind the police and EMTs as they vainly tried to revive Eric and followed them downstairs as they put his body into the ambulance. Returning upstairs, she told the inquiring police officers that Eric had developed flu-like symptoms the night before and had not awakened in the morning. She also stated that he had fallen down the stairs a few days earlier while playing, but that she had not called a doctor out of fear that DSS would learn of the incident and take Eric from her. [Note 3]

At some point, the police learned that Eric had been pronounced dead at the hospital and informed Melissa of that fact. She then said she was "going to tell the truth" (so one officer testified). She proceeded to inform the police that Eric had not in fact sustained his injuries as a result of any fall and to recite the substance of her trial testimony, outlined above, about Cruz's physical abuse of Eric. The testimony about Melissa's belated revelations included her having said that "the defendant [had] struck Eric in the face, the chest and the stomach area." A second officer testified that she repeated her allegations regarding Cruz's misconduct, which he had tape recorded, after she was brought to the police station. [Note 4]

After establishing that, at the time of Eric's death, Cruz was five feet, nine inches tall and weighed 195 pounds while Melissa was a "small," "thin," "very frail looking," five feet, two inches tall woman who weighed 105 to 110 pounds, the prosecutor presented the testimony of the medical examiner who had

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performed the autopsy on Eric's body. The examiner had found over 120 bruises of varying ages on the body (including thirteen that were consistent in size and shape with a signet ring seized from Cruz) and had determined the cause of death as most likely being a forceful kick, stomp or other blow to the child's abdomen sustained between twelve hours and two days before death. A physician who directed a child protection team at Children's Hospital also testified, on the basis of photographs, test results and autopsy reports, that the many bruises on Eric's body appeared intentionally inflicted over a period of time rather than accidental. He opined that the fatal injury had resulted from a kick to the abdomen by "a strong person inflicting as much force as he could muster with [a shod] foot [or boot]," and that some of the bruises corresponded to the markings on Cruz's ring. The prosecution also presented evidence that Cruz owned a pair of Timberland boots.

Cruz's case. The defense strategy was signaled in counsel's opening statement: Melissa, angry and jealous (because Cruz was seeing other women), was an abusive parent who was responsible for all of Eric's injuries, including the fatal blow. To save herself from the consequences of her impulsive actions, she first engaged in a pattern of lying and concealing facts from everyone, including her family, school authorities, DSS, EMTs and the police, and then falsely implicated Cruz when the enormity of the situation became apparent. Cruz testified that Melissa was not only a neglectful parent (regarding Eric's nourishment, hygiene, and health care) but had also been both verbally and physically abusive to Eric in the days before his death -- including pushing, slapping, kicking and dragging him up the stairs, drawing blood. This violence had provoked Cruz's remonstrances, but to no avail because Melissa was frequently "high" on cocaine. [Note 5] She also owned boots and habitually wore several large rings. Cruz denied ever striking Eric and asserted that he himself had attempted CPR on Eric and was the one who initiated the call for an ambulance. He had fled in the aftermath of the tragedy only because he knew there were

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outstanding warrants for his arrest (on unrelated charges) and he had an unlicensed gun that he kept for protection.

The basis for reversal. The Commonwealth concedes, as it must, that the judge erred in allowing the police witnesses' hearsay recounting of Melissa's extrajudicial statements to them on January 25, 1996, alleging Cruz's physical abuse of Eric. The judge did so on the ground that the statements constituted exceptions to the prohibition against hearsay testimony as "admissions against [her] penal interest." Melissa having testified and been present in court, however, her statements failed to meet a foundational requirement of such an exception, that the declarant be unavailable. See Commonwealth v. Charles, 428 Mass. 672 , 677 (1999). [Note 6]

The Commonwealth attempts, however, to validate the admission of that hearsay evidence by resort to a principle it contends is of general application: namely, it argues that "[i]f evidence is admissible under any theory supported by the record, 'it is of no consequence whether the precise reasons assigned by the [trial] judge are accurate' " (quoting from Commonwealth v. Cast, 407 Mass. 891 , 897 [1990]). That principle applies here, the Commonwealth posits, because the police witnesses' repetition of Melissa's January 25, 1996, statements fingering Cruz as the person responsible for harming Eric were admissible as "prior consistent statements" introduced "to rebut an implication that the witness's story is a recent fabrication" (citing

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Commonwealth v. Rivera, 430 Mass. 91 , 99-100 [1999]). The Commonwealth's after-the-fact rationale does not survive analysis, for several reasons.

First, the officers' testimony as to Melissa's statements casting all blame for Eric's death on Cruz failed the most fundamental tests for common law hearsay exceptions: a "strong necessity" for evidence which the fact finder would otherwise never receive; and a "guarantee of trustworthiness in the circumstances surrounding the making" of the statements. Liacos, Massachusetts Evidence § 8.4.1, at 477 (7th ed. 1999). Since Melissa herself testified, there was no need for the effective repetition of her testimony, much less a strong necessity. Given her succession of lies regarding Eric's injuries, the lack of spontaneity in her statements to the police, her exculpatory change of story immediately upon learning of the extremity of the situation, and her expressed concern even prior to the fatal incident that the authorities would hold her responsible for Eric's physical abuse, it could not be said that there existed any guarantees of trustworthiness in the circumstances surrounding Melissa's accusations against Cruz. [Note 7]

Nor is the principle on which the Commonwealth relies either as general or as applicable to this case as it contends. The authority cited by the Commonwealth for the proposition -- Commonwealth v. Cast, 407 Mass. at 897, which in turn relied upon Commonwealth v. Signorine, 404 Mass. 400 , 403 n.1 (1989) -- did not in fact involve any hearsay evidence, but rather illegal drugs that each defendant had unsuccessfully moved to suppress on the ground that the police seizure lacked probable cause. Each case featured extensive findings by the motion judge sufficient to support the appellate conclusion that the officers had probable cause to search for and seize the

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contraband, notwithstanding certain erroneous determinations by the judge. [Note 8] No equivalent fact finding by the judge exists in this case to provide support for the admission of otherwise inadmissible hearsay on the Commonwealth's alternative "prior consistent statement" theory.

Before a witness's prior consistent statement may be admitted, the trial judge must exercise discretion to determine whether the circumstances warrant the admission of such hearsay, and special judicial attention must be directed to the issue whether the statement was made before or after the witness had an incentive to fabricate her testimony. See Commonwealth v. Zukoski, 370 Mass. 23 , 27 (1976); Commonwealth v. Rivera, 430 Mass. at 100. Such statements, moreover, "should be allowed only with caution, and where the probative value for the proper purpose is clear." Commonwealth v. Lareau, 37 Mass. App. Ct. 679 , 683 (1994), quoting from Commonwealth v. Darden, 5 Mass. App. Ct. 522 , 528 (1977). The trial judge engaged in no such exercise here and made no findings that would reflect the requisite cautious, discretionary analysis [Note 9] -- unsurprisingly, since he never contemplated, much less relied on, the evidentiary

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theory now advanced by the Commonwealth. See Commonwealth v. Almeida, 42 Mass. App. Ct. 607 , 614-615 (1997).

It is also apparent that the "evidence admissible under any theory" principle cannot literally be of universal application. There are different levels and purposes of admissibility with respect to different hearsay exceptions, and the evidentiary consequences may differ considerably depending on the proper theory. This case furnishes an example of that reality. Declarations against penal interest are admissible for the truth of the matters asserted. See Commonwealth v. Charles, 428 Mass. at 676-680; Liacos, Massachusetts Evidence § 8.10, at 516 (7th ed. 1999), and authorities cited. Prior consistent statements, however, when allowable under the narrow hearsay exception, have long been deemed inadmissible as substantive evidence and entitled only to a restricted admissibility (under a proper limiting instruction) for the sole purpose of rehabilitating the credibility of a witness-declarant who has been impeached on the ground that her trial testimony is of recent contrivance. See Commonwealth v. Jenkins, 10 Gray 485 , 487-490 (1858); Commonwealth v. Zukoski, 370 Mass. at 26-27; Commonwealth v. Rivera, 430 Mass. at 99-100. [Note 10]

The application of an erroneous evidentiary theory in Cruz's

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case was, therefore, of great consequence. It transformed evidence that should have been confined to supporting the witness's credibility into evidence that the jury could accept as proof of the truth of the facts asserted in the hearsay statements. Of necessity, it also denied the defense the right and opportunity to request a proper limiting instruction.

The more basic flaws in the Commonwealth's argument, however, are its fallacious premises: that Melissa's extrajudicial incrimination of Cruz, as testified to by the officers, was properly admissible as a prior consistent statement; and that, even if it was erroneously admitted on any basis, the error was not prejudicial to Cruz. As an initial procedural observation, we note that it was wrong for the Commonwealth to attempt to "pump[] up," Commonwealth v. Kindell, 44 Mass. App. Ct. 200 , 202 (1998), quoting from 4 Wigmore, Evidence § 1124 (Chadbourn rev. ed. 1972), Melissa's testimony in its direct case, even were the "prior consistent statement" exception applicable. It is true that the prosecutor may, in certain circumstances, attempt to deflect an anticipated defense accusation of recent fabrication by presenting a prior consistent statement in direct examination, rather than in the customary manner of introducing it on redirect or rebuttal to rehabilitate the witness after her impeachment by an inconsistent statement on cross-examination. See Commonwealth v. Saarela, 376 Mass. 720 , 722-723 (1978).

Permitting such a deviation in the presentation of evidence is, however, a matter for the trial judge's discretion, the exercise of which was here never even contemplated. See Commonwealth v. Martinez, 425 Mass. 382 , 396-397 & nn.15-16 (1997). The discretionary allowance of such a change in the order of presentation of proof is appropriate only when it is clear that a defense claim of recent contrivance by the witness is "unavoidable or 'inevitable.' " Id. at 397. Such was not the instant situation. Far from accusing Melissa of recent fabrication, the explicit defense strategy throughout, from opening through cross-examination to summation, was that she had always been a self-serving opportunist who had motivation to lie, and had

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indeed lied, about Eric's physical abuse from the outset -- initially to avoid the reproach of and hide the facts from her family and school authorities, then to prevent DSS from removing Eric from her custody, [Note 11] subsequently to protect herself from punishment for the abuse, and finally to avoid responsibility for his death, as well as to retaliate against Cruz for his lack of fidelity to her. No claim of "recent" contrivance by Melissa was ever made or was even reasonably foreseeable as defense strategy.

Had the evidence been presented in the correct order, the testimony of the officers would not have been admissible, for the defense impeachment strategy was not based on a theory of recent, but rather of original and long-maintained contrivance, and no other hearsay exception would have been applicable. In light of Melissa's admitted, self-protective, and persistent pattern of lying about and concealing the facts regarding Eric's physical condition, it is evident that her motive to fabricate and to implicate Cruz preceded her statements to the police, arising no later than the day of Eric's death, and would have been at work at the time she spoke to the police under the unavoidably overhanging threat of arrest for being the person responsible for Eric's fate. Given such a time frame, even had the prosecutor sought to invoke the exception for prior consistent statements, his effort would have been unavailing upon a proper exercise of the trial judge's discretion. See and compare Commonwealth v. Zukoski, 370 Mass. at 26-28; Commonwealth v. DiLego, 387 Mass. 394 , 395, 399-400 (1982); Commonwealth v. Healy, 393 Mass. 367 , 383- 384 (1984); Commonwealth v. Darden, 5 Mass. App. Ct. at 527-530; Commonwealth v. Kirby, 18 Mass. App. Ct. 960 , 961 (1984); Commonwealth v. Binienda, 20 Mass. App. Ct. 756 , 759 (1985).

The Commonwealth's ultimate assertion, that Cruz could not have been prejudiced by the erroneously admitted hearsay, is especially unpersuasive. Its basis for this contention -- that the

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statements "added nothing of substance to the Commonwealth's case" -- is simply wrong. The police recounting of Melissa's January 25, 1996, version of events was in fact more graphic and detailed than Melissa's trial testimony, in that the police version had her reporting that "the defendant [had] struck Eric in the face, the chest and the stomach area" (emphasis added). Melissa, the Commonwealth's only percipient witness as to Cruz's responsibility for Eric's injuries, did not testify that she had ever seen Cruz strike Eric in the stomach.

The forensic experts having opined that the fatal injury had been inflicted by a severe blow to the abdomen rupturing Eric's duodenum, it is difficult to conceive of a more prejudicial statement in the circumstances. [Note 12] It went beyond and added substantially to Melissa's incriminating account in a manner that might even be said to have filled a gap in the Commonwealth's case. See Commonwealth v. Lareau, 37 Mass. App. Ct. at 682-684 (despite limiting instructions, prejudicial error was created by the erroneous admission of police recounting of key witness's prior consistent statement, made after a motive to falsify came into existence, because the police testimony included details as to defendant's assault on the victim that went beyond witness's own testimony and might have been considered evidence of the truthfulness of the underlying statement). Cf. Commonwealth v. Scanlon, 412 Mass. 664 , 670 (1992) (hearsay testimony introduced under the "fresh complaint" exception is impermissible when it adds damaging details not testified to by the declarant that "fill gaps in the prosecution's case"); Commonwealth v. Flebotte, 417 Mass. 348 , 351-352 (1994) ("fresh complaint" hearsay improperly exceeded the scope of the declarant's testimony because it "added to it substantively").

Even when an improperly admitted prior consistent statement does not exceed the scope of the declarant's testimony, our appellate courts have long noted that such evidence "from its very nature . . . may be likely to influence the jury as substantive evidence of its own truthfulness. . . . [and constitutes] an illegitimate influence . . . so great" that its admission should be

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exceptional. Commonwealth v. Tucker, 189 Mass. 457 , 484 (1905). We have recognized that limiting instructions from the trial judge as to the use of a prior consistent statement solely for impeachment purposes do not necessarily cure or avoid the latent prejudice "because of the ever present danger that the jury will, despite instructions, consider the prior consistent statement as evidence of the facts therein asserted." Commonwealth v. Darden, 5 Mass. App. Ct. at 528. Limiting instructions as to the restricted use of hearsay evidence are of particularly questionable curative value when, as here, the case against the defendant is not overwhelming [Note 13] and the prosecutor urges the jury to consider the hearsay evidence as enhancing the reliability of the declarant's testimony -- here the incrimination of Cruz by Melissa, the only witness to claim to have seen Cruz ever strike Eric. In such circumstances, we doubt it could be said with fair assurance that the jury did not attach substantial significance to the police iteration and amplification of Melissa's testimony in a manner that adversely affected Cruz's substantive rights. [Note 14] See Commonwealth v. Rosa, 412 Mass. 147 , 158-160 (1992); Commonwealth v. Binienda, 20 Mass.

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App. Ct. at 759-760 (hearsay erroneously admitted as a prior consistent statement was prejudicial despite limiting instructions because of the inherent danger of jury misuse of the statements as substantive evidence). See also Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437 , 445-446 (1983) (generally as to evaluating error for harmlessness).

All the more prejudicial must the improperly admitted police testimony have been here. There were no limiting instructions, [Note 15] and the jury were encouraged and were left free to treat the prior consistent statements -- including their critical elaboration by the police to include Cruz's striking Eric in the stomach -- as evidence of the truth of the facts therein asserted. See Commonwealth v. Almeida, 42 Mass. App. Ct. at 614-615 (judge admitted witness's prior consistent statements under an erroneous hearsay theory and gave no limiting instructions appropriate

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to such statements, so "the jury heard inadmissible testimony corroborating [the principal witness's] version of the events. The defendant's credibility had been pitted against the [witness's], and the piling on of corroborative testimony could have materially affected the jury's deliberations . . . [because of] the danger of prejudice inherent in repetitive testimony which corroborates a witness's testimony" [citations omitted]). [Note 16]

In fine, we conclude that the erroneous admission of the inadmissible hearsay corroborating Melissa's testimony sufficiently weakened Cruz's case and prejudiced his right to a fair trial "in some significant way," Commonwealth v. Cyr, 425 Mass. 89 , 95 (1997); Commonwealth v. Esteves, 429 Mass. 636 , 639-641 (1999), that the judgments must be reversed.

The remaining issues raised by Cruz can be addressed briefly.

1. We agree with the Commonwealth that the trial judge properly barred Cruz from impeaching the prosecution's two medical experts with evidence of their alleged isolated mistakes or inconsistencies in wholly unrelated prior cases. Such evidence was, under well-established principles, either legally irrelevant to the reliability of the experts' testimony here or, if marginally

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relevant, was excludable in the judge's discretion as an unduly time-consuming, collateral and confusing diversion. Determining that the witnesses' prior testimony as experts in other cases did not demonstrate bias was also well within the judge's discretion; nor has Cruz shown how that testimony logically reflected or tended to show bias or incompetence in any manner relevant to the facts of this case, or how its exclusion was productive of discernible prejudice to his defense.

2. It was, as the Commonwealth argues, permissible for the judge to bar Cruz's introduction of evidence (in the form of DSS records) that Melissa may have mistreated her children long before (primarily in 1989 and 1990) Eric's death, which Cruz appears to have offered for the patently improper purpose of attempting to show that such "prior bad acts" revealed Melissa's propensity to have mistreated Eric. Since the Commonwealth never disputed, and indeed frankly acknowledged, Melissa's serious deficits and faults as a neglectful parent, and because Melissa freely acknowledged her fear of DSS intervention due to her parental shortcomings and her lies to avoid it, the judge correctly could have excluded the records as irrelevant or, at best, cumulative.

3. Cruz's claim that the trial judge erred by excluding Melissa's psychological records is without merit, particularly since he failed to bear his burden of satisfying all of the procedures established in Commonwealth v. Bishop, 416 Mass. 169 , 181-183 (1993) (as modified in Commonwealth v. Fuller, 423 Mass. 216 , 226 [1996]), which are prerequisite to obtaining and introducing such privileged (see G. L. c. 233, § 20B) communications between patient and psychotherapist. Indeed, Cruz has failed to show how such records were legally relevant to his defense, much less required for a fair trial. His stated purpose of using them, to reveal to the jury that Melissa had a "short fuse" and was "prone to emotional reactions and impulsive behavior" -- apparently to suggest that such character traits made her more likely to have inflicted Eric's fatal injury -- was manifestly improper.

4. In light of our reversal of the judgments, there is no need to address Cruz's challenges to the trial judge's denials of his motions to reduce the murder verdict to manslaughter pursuant

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to Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979), and to dismiss the count alleging assault and battery on a child causing substantial bodily injury, on the ground that it was a lesser included offense to murder and his conviction thereof was thus duplicative of his murder conviction.

Judgments reversed.

Verdicts set aside.