Commonwealth v. Wray

The jury could have found the following facts

based on the evidence presented at trial. The defendant and

Cruz had been in a dating relationship for about one month,

when, on November 19, 2012, they both attended a Narcotics

Anonymous meeting in West Springfield. Before the meeting

began, the defendant saw Cruz hug another man. The defendant

became upset, started yelling at Cruz, and said that he was

going to come back and "fuck [her] up." That night, Cruz was

interviewed by and gave two statements to the police. In her

first statement, Cruz did not say that the defendant pushed her.

In her second statement, Cruz stated that the defendant did, in

fact, push her.2 At trial, Cruz testified that the defendant

tried to push her, but said several times that she could not

remember if he actually touched her. Subsequently, the

prosecutor refreshed her memory with the second statement that

she gave to the police on the night of the incident. The

following exchange ensued:

The Commonwealth filed a nolle prosequi on that count prior to trial.

Neither statement appears in the record.

Prosecutor: "Did he make physical contact with you?"

Cruz: "He pushed me, yeah, but it wasn't a push that I fell."

Prosecutor: "Okay. But he touched you?"

Cruz: "Yes."

On the day of trial, before it began, defense counsel spoke

with Cruz about the incident that formed the basis for the

charge of assault and battery.3 Specifically, defense counsel

asked Cruz whether the defendant had pushed her. Cruz stated

that the defendant did not touch her on November 19, 2012, and

that he did not make a pushing or threatening motion towards

her. On recross-examination, defense counsel attempted to ask

Cruz about these statements. The Commonwealth objected, after

which the following discussion took place at sidebar:

Prosecutor: "This is definitely hearsay."

The court: "Yes, it's hearsay."

Defense counsel: "It's used to impeach her."

The court: "It's hearsay."

Prosecutor: "I mean if [defense counsel] wants to take the stand and I can cross-examine her."

The court: "It's hearsay. It's not . . . I mean (inaudible) as it's phrased."

3 The parties agreed to expand the record on appeal to include the details of this conversation.



4

The judge sustained the Commonwealth's objection and instructed

the jury to disregard the question.

In her closing argument, defense counsel argued that Cruz's

"testimony [was] not really reliable" because she did not state

that the defendant touched her until the prosecutor refreshed

her recollection with one of her statements to police. The

Commonwealth argued in its closing argument that Cruz's

reliability was the central issue in the trial.4 As noted, the

jury found the defendant not guilty of assault and battery, but

guilty of the lesser included offense of assault and of

threatening to commit a crime.

Discussion. The defendant argues that a reversal is

required because the judge improperly prevented defense counsel

from eliciting impeachment evidence from Cruz on recross

examination. The Commonwealth concedes that the judge erred,

but asserts that the error does not warrant a new trial. We

begin by addressing the appropriate standard of review.

The defendant claims that the appropriate standard of

review is prejudicial error because defense counsel preserved

the issue by informing the judge, at sidebar, that she intended

to offer the statement for impeachment purposes. The

4 Specifically, the prosecutor stated: "The question, is do you believe her or don't you believe her? That's what this trial is about."



5

Commonwealth argues that because defense counsel failed to take

exception to the judge's adverse ruling, our review is for a

substantial risk of a miscarriage of justice. We disagree. The

"archaic" rule requiring an exception to preserve an issue for

appellate review was abolished by the adoption of rule 22 of the

Massachusetts Rules of Criminal Procedure, 378 Mass. 892 (1979).

Rule 22 provides that "[e]xceptions to rulings or orders of the

court are [now] unnecessary and . . . it is [now] sufficient

that a party, at the time the ruling or order of the court is

made or sought, makes known to the court the action which he

desires the court to take or his objection to the action of the

court . . . ." Here, defense counsel stated at sidebar that she

wanted to introduce the prior inconsistent statement at trial

for the purpose of impeaching the witness's testimony. See

Commonwealth v. Hollie, 47 Mass. App. Ct. 538, 541 n.3 (1999)

("[T]rial counsel need not achieve perfection in identifying

every impropriety . . . so long as the objection alerts the

judge to the grounds on which trial counsel objected").

Although defense counsel did not specifically object to the

judge's adverse ruling, the fact that she, in effect, made an

offer of proof as to the statement's admissibility put the judge

on notice of the purpose of the proffered statement and

satisfied the requirements of rule 22.5 See Commonwealth v.

5 The dissent contends that defense counsel's statements did



6

Jewett, 392 Mass. 558, 562 (1984), quoting from Commonwealth v.

Graziano, 368 Mass. 325, 330 (1975) (counsel is "not required to

make further efforts 'in the face of the judge's unequivocal

adverse ruling'"); Commonwealth v. Bonds, 445 Mass. 821, 828

(2006) ("We have consistently interpreted [rule 22] to preserve

appellate rights only when an objection is made in a form or

context that reveals the objection's basis"). See also

Commonwealth v. Ayala, 29 Mass. App. Ct. 592, 598 n.8 (1990).

"To rule otherwise would exalt form over substance."

Commonwealth v. Morin, 52 Mass. App. Ct. 780, 783 n.3 (2001),

quoting from Commonwealth v. Spear, 43 Mass. App. Ct. 583, 589

n.8 (1997). Accordingly, we review for prejudicial error.

Commonwealth v. Parent, 465 Mass. 395, 399 (2013).

not constitute an offer of proof and notes that an offer of proof was required here "to preserve for appellate review the issue of the degree of prejudice caused by the erroneous ruling." Post at , quoting from Commonwealth v. Chase, 26 Mass. App. Ct. 578, 582 (1988). We disagree; an offer of proof was not required here because the substance of the evidence was "apparent from the context." Mass. G. Evid. § 103(a)(2) (2015). Because this was a single-witness case, defense counsel's strategy at trial was to undermine Cruz's credibility by impeaching her with her contradictory statements. Defense counsel's question to Cruz -- "And I asked you whether there was physical contact?" -- considered in light of the defendant's trial strategy, makes clear the substance and materiality of the evidence. See Commonwealth v. Donovan, 17 Mass. App. Ct. 83, 88 (1983) (no offer of proof needed where substance of testimony was apparent from defense counsel's questions). Cf. Commonwealth v. Campbell, 51 Mass. App. Ct. 479, 482 (2001) (offer of proof required where "counsel's wide open question may also have elicited inadmissible, irrelevant evidence").



7

"An error is nonprejudicial only '[i]f . . . the conviction

is sure that the error did not influence the jury, or had but

very slight effect . . . .'" Commonwealth v. Flebotte, 417

Mass. 348, 353 (1994), quoting from Commonwealth v. Peruzzi, 15

Mass. App. Ct. 437, 445 (1983). "The inquiry cannot be merely

whether there was enough to support the result, apart from the

phase affected by the error." Commonwealth v. Peruzzi, supra at

445-446, quoting from Kotteakos v. United States, 328 U.S. 750,

764-765 (1946). Rather, it is "whether the error itself had

substantial influence. If so, or if one is left in grave doubt,

the conviction cannot stand." Id. at 746, quoting from

Commonwealth v. Kotteakos, supra at 765.

First, we reject the Commonwealth's argument that although

the judge erred in ruling that defense counsel could not present

the impeachment evidence as it related to the assault and

battery charge, the judge had the discretion to prevent such

inquiry as it related to the threat to commit a crime charge

because it did not affect the elements of that offense. This

argument misses the point. The issue is the extent to which the

admission of an inconsistent statement would have affected the

victim's credibility. See Commonwealth v. Polk, 462 Mass. 23,

33 (2012) (where proffered evidence goes to victim's credibility

in case that rests "almost entirely" on victim's credibility, "a

judge's evidentiary decision assumes a constitutional



8

dimension"). Cf. Commonwealth v. Sherry, 386 Mass. 682, 693

(1982) (no abuse of discretion where excluded statement "was

offered only to impeach [the victim's] credibility generally and

not as to her description of the events in issue"). Here,

because Cruz's testimony was the only evidence presented for

both the assault and battery and the threat to commit a crime

charges, her "credibility was the sole issue at trial" and thus

was material. See Commonwealth v. Parent, supra at 401-402

(exclusion of prior inconsistent statement required reversal of

one of three charges because that charge was based solely on

victim's testimony).6

The Commonwealth also contends that in both instances, the

judge's limitation on defense counsel's ability to confront Cruz

with her inconsistent statement was not reversible error because

the statement was cumulative of other impeachment evidence

presented at trial, and defense counsel adequately undermined

Cruz's credibility on cross-examination. We disagree. The

right to confront witnesses is a fundamental right granted to

all persons who are accused of a criminal offense. See Olden v.

6 We acknowledge that Commonwealth v. Parent is distinguishable from this case because there, the court vacated only the conviction associated with the improperly excluded statement. 465 Mass. at 396-397. As noted, however, because here Cruz's credibility was the main issue at trial for both charges, we conclude that the judge's error also prejudiced the defendant with respect to the threat to commit a crime charge.



9

Kentucky, 488 U.S. 227, 231 (1988); Commonwealth v. Tam Bui, 419

Mass. 392, 400 (1995). This right, found in the Sixth Amendment

to the United States Constitution as well as in art. 12 of the

Massachusetts Declaration of Rights, takes many forms.

Commonwealth v. Tam Bui, supra. In the context of a criminal

trial, "'a primary interest secured by [the confrontation

clause] is the right of cross-examination' . . . [which] is the

principal means by which the believability of a witness and the

truth of his testimony are tested." Davis v. Alaska, 415 U.S.

308, 315-316 (1974), quoting from Douglas v. Alabama, 380 U.S.

415, 418 (1965). Impeachment with prior inconsistent statements

is one method of testing the witness's credibility. Indeed, it

is well established "that if a witness either upon his direct or

cross-examination testifies to a fact which is relevant to the

issue on trial the adverse party, for the purpose of impeaching

his testimony, may show that the witness has made previous

inconsistent or conflicting statements." Commonwealth v.

Parent, 465 Mass. at 399-400, quoting from Robinson v. Old

Colony St. Ry., 189 Mass. 594, 596 (1905). See Commonwealth v.

Polk, 462 Mass. at 33, quoting from Commonwealth v. Ruffen, 399

Mass. 811, 816 (1987) ("[O]ur 'Constitution requires that a

defendant be permitted to introduce evidence which may

materially affect the credibility of the [alleged] victim's

testimony'"). Moreover, where prior inconsistent statements



10

relate to a main issue at trial, the judge has "no discretion to

preclude their use for impeachment purposes." Commonwealth v.

Donnelly, 33 Mass. App. Ct. 189, 197 (1992). See Commonwealth

v. Moore, 50 Mass. App. Ct. 730, 736-737 (2001) (judge erred in

disallowing introduction of contradictory statements which could

have undermined witness's credibility). See also Commonwealth

v. West, 312 Mass. 438, 440 (1942).

Here, although the prosecutor and judge misconstrued the

proffered evidence as hearsay, defense counsel indicated that

she sought to introduce it for purposes of impeaching Cruz.

Indeed, the crux of the defense at trial was that Cruz was not

credible and that "evidence that her description [of the

defendant's actions] changed from one telling to the next is

probative of whether her story is true and whether it deserves

to be credited beyond a reasonable doubt." Commonwealth v.

Parent, 465 Mass. at 401. By limiting defense counsel's ability

to confront Cruz with the inconsistent statement, the judge

deprived the jury of an essential statement made by Cruz, which

could have assisted the jury in evaluating her credibility.

This limitation is particularly troublesome here because this

was a one-witness trial, the outcome of which necessarily

depended on Cruz's credibility. Moreover, Cruz's inconsistent

statements were not cumulative of other evidence as the



11

Commonwealth claims.7 To the contrary, we can think of no more

compelling impeachment evidence than statements such as the one

here that are diametrically opposed to the witness's in-court

testimony.8 In sum, because Cruz's testimony was the only

evidence presented at trial, her credibility was a critical

issue in the case. Accordingly, the judge's failure to allow

defense counsel to elicit Cruz's prior inconsistent statement

7 The dissent also concludes that this evidence was cumulative of other impeachment evidence. See post at . The cases relied upon by the dissent in reaching this conclusion, however, are inapposite. In Commonwealth v. Clarke, 418 Mass. 207, 211-212 (1994), the Supreme Judicial Court held that it was not error to deny defense counsel's request to admit in evidence written inconsistent statements, which had already been read in their entirety to the jury. Here, however, the jury were prevented from even hearing about Cruz's statements to defense counsel. Likewise, Commonwealth v. Aguiar, 78 Mass. App. Ct. 193 (2010), is readily distinguishable. In that case, the victim's mother testified that during a counselling session at which she was present, the defendant admitted to sexually assaulting the victim. Id. at 198. The defendant testified at trial and denied making any such statements. Ibid. Defense counsel then attempted to elicit testimony from the defendant's wife that the defendant had not made admissions during the counselling session, but was prevented from doing so. Id. at 205. We concluded that although error, the exclusion of the wife's testimony was not prejudicial because it "would have added little to her husband's denial," and the alleged admission did not figure prominently into either side's theory of the case. Id. at 206-207. Unlike in Aguiar, the entire case here turned on whether the jury believed the defendant or Cruz. Accordingly, the testimony defense counsel sought to elicit was a critical piece of evidence, which was not cumulative of the other impeachment evidence presented at trial.

Because, however, defense counsel was not allowed to question Cruz about her inconsistent statement, it is unclear whether Cruz would have adopted the statement she made to defense counsel on the day of trial or repudiated it. The Circuit Court deprived the defendant of his right to a fair trial. We therefore reverse the judgments and set aside the verdicts.



So ordered.

The defendant appeals from his convictions of assault and threating to commit a crime. He claims that the judge erred by barring defense counsel from eliciting from the alleged victim, Rosa Cruz, the sole witness in the case, whether
she had made certain statements to defense counsel that were
inconsistent with her testimony at trial. Wrcuite reverse.