Commw. V. Cruz
| Citation | 53 Mass. App. Ct. 393 |
| Decision Date | 18 December 2001 |
| Docket Number | 99-P-2042 |
| Parties | COMMONWEALTH vs. JUAN E. CRUZ. Docket No.: 99-Massachusetts Court of Appeals |
| Court | Appeals Court of Massachusetts |
County:Suffolk.
Present: Laurence, Cypher, & Doerfer, JJ.
Evidence, Hearsay, Prior consistent statement, Declaration against interest, Credibility of witness, Judicial discretion, Expert opinion, Impeachment of credibility, Relevancy and materiality, Cumulative evidence, Medical record. Witness, Credibility, Corroboration. Practice, Criminal, Fair trial.
Indictment found and returned in the Superior Court Department on February 15, 1996.
The case was tried before Vieri Volterra, J.
Charles K. Stephenson for the defendant.
Paul B. Linn, Assistant District Attorney (Josh Wall, Assistant District Attorney, with him) for the Commonwealth.
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 having seen Cruz physically abuse Eric.
She testified that she had invited Cruz to live with her in 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."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."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 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.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.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 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.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 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).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...
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