Commonwealth v. Conley ( 2023 )

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22-P-705 Appeals Court
COMMONWEALTH vs. CHRISTOPHER CONLEY.
No. 22-P-705.
Hampshire. July 6, 2023. - October 25, 2023.
Present: Sacks, Shin, & Grant, JJ.
Attempt. Homicide. Assault and Battery by Means of a Dangerous
Weapon. Assault and Battery. Evidence, Expert opinion,
Prior misconduct, Motive, Intent, Admissions and
confessions, Court record, Prior consistent statement,
Cross-examination. Practice, Criminal, Assistance of
Counsel, Admissions and confessions, Continuance, Failure
to object, Argument by prosecutor. Witness, Expert.
Indictments found and returned in the Superior Court
Department on August 11, 2015.
The cases were tried before Richard J. Carey, J., and a
motion for a new trial, filed on November 30, 2021, was heard by
him.
MarySita Miles for the defendant.
Bethany C. Lynch, Assistant District Attorney, for the
Commonwealth.
SACKS, J. In 2015, the defendant confessed to having tried
to kill his seven year old daughter, who had complex medical
2
problems, by putting "Liquid Plumr" drain cleaner into a tube
surgically connected to her large intestine. The defendant was
indicted in 2015 for attempted murder (G. L. c. 265, § 16),
assault and battery by means of a dangerous weapon on a child
(G. L. c. 265, § 15A [c] [iv]), and assault and battery on a
child causing substantial bodily injury (G. L. c. 265, § 13J).
Despite recanting his confession at his 2020 Superior Court jury
trial, he was convicted on all charges.
The defendant now appeals, arguing principally that the
trial judge abused his discretion in (1) excluding the testimony
of the defendant's expert on false confessions; (2) admitting
evidence that, in the defendant's 2015 confession, he also
acknowledged intentionally causing his daughter's blood
infections in 2009 by dipping part of her central line in stool;
and (3) excluding evidence that, shortly before the 2015
confession, the defendant told his attorney in a related care
and protection case brought by the Department of Children and
Families (DCF) that he "didn't do it" but was going to confess
because "this is what we do for our family." The defendant also
appeals from the judge's order denying his motion for a new
trial based on ineffective assistance of counsel. We affirm.
3
Background. The jury heard evidence that the defendant's
daughter, M.C.,1 had complex medical conditions that, among other
things, interfered with her feeding normally. As of 2009, M.C.
had a total parenteral nutrition (TPN) central line inserted
through her chest. In March of 2009, when she was seventeen
months old, she was admitted to the intensive care unit at Tufts
Medical Center and treated by Dr. H. Cody Meissner for unusual
blood infections related to the TPN line.
Dr. Meissner believed that the infections were caused by
several types of bacteria found in M.C.'s bloodstream that were
ordinarily found in the gastrointestinal tract -- a separate,
contained system -- and in stool. His "strong suspicion was
that the tip of [M.C.'s] catheter was being placed in stool"; he
could not think of any other medical explanation. He was "very
worried that something was going on with this family," and,
indeed, the "infections stopped when [M.C.] was separated from
the family." Based on suspicions that someone was tampering
with M.C.'s TPN line, DCF became involved and filed its first
petition for the care and protection of M.C. She was removed
1 See Care & Protection of M.C., 479 Mass. 246, 250 & n.1
(2018), S.C., 483 Mass. 444 (2019).
4
from the custody of the defendant and his wife2 (M.C.'s mother)
for eighteen months but was ultimately returned to them.
By late 2014, when M.C. was seven years old, Dr. Doruk
Ozgediz, a pediatric surgeon at Yale New Haven Hospital (YNHH),
had implanted a cecostomy tube (C-tube) directly into her
digestive tract. The C-tube provided access to M.C.'s cecum
(the upper part of her large intestine) so that it could be
irrigated regularly with saline solution to relieve her severe
constipation.
On the morning of April 15, 2015, the defendant stayed home
with M.C. while the defendant's wife went to a school meeting
from 8 A.M. to 9 A.M. School records later confirmed her
attendance at the meeting, and employment records later
confirmed that the defendant arrived at work at 9:30 A.M. that
day, which was later than usual, and then left again at noon.
That afternoon, the defendant and his wife brought M.C. to
YNHH with a high fever. M.C. was readmitted and seen by
Dr. Ozgediz for a fever with rigors (shaking of the body) and
abdominal distension causing mild discomfort; her vital signs
were relatively normal. Her condition remained similar until
April 17, when she became critically ill, with signs of
2 Sometime between his 2015 confession and his 2020 trial,
the defendant and his wife apparently divorced. For convenience
we refer to her as "wife" throughout.
5
perforation of her intestines. Dr. Ozgediz performed surgery on
M.C. and discovered that segments of her intestines "had
essentially liquified and melted and had holes in them and were
leaking fluid." He found that the portions of M.C.'s intestines
immediately adjacent to the C-tube, including the cecum itself,
were "essentially . . . dead"; two-thirds of her intestinal
tract had to be removed. Her life was in danger. Dr. Ozgediz
found no sign of any blood supply problem, infection, or tissue
adhesion that could have caused the intestines to die, nor did
the pathology results from the tissue and fluid show any clear
cause.
M.C. initially recovered well from her surgery, but a week
and a half later, fluid began to leak into her abdominal cavity.
Further tests revealed that the fluid was urine, coming from a
substantial hole in her bladder -- a condition that Dr. Ozgediz
had never seen before. M.C.'s bladder necrosis was unusual,
extending to a third or more of her bladder, with a clear line
between the necrotic tissue and the healthy tissue. This, and
the lack of any medical explanation for the damage to the
intestines or bladder, led Dr. Ozgediz to conclude that he was
"a hundred percent certain" that the cause was a "chemical
injury." He further concluded that a caustic substance had been
introduced through the C-tube into the intestines. It had
6
burned its way out of the intestines into the abdominal cavity,
and from there into the bladder, over the course of a few days.
Shortly thereafter, on May 6, 2015, Dr. Ozgediz and others
from the YNHH care team met with DCF, police, and a prosecutor
to discuss their suspicions that the defendant and his wife had
deliberately caused M.C.'s injuries. DCF then filed a second
care and protection petition and informed the defendant and his
wife that it was taking custody of M.C. That same day, a search
warrant was executed on their home seeking items including a
caustic substance such as drain cleaner; police found
prescription opioids, saline solution, and sixty cubic
centimeter (60 cc) plungers, but no drain cleaner.
Two days later, on May 8, 2015, the defendant met with the
attorney appointed to represent him in the care and protection
case. Although, as explained infra, the jury heard no evidence
of it, the defendant told the attorney, "I am going to give the
[d]istrict [a]ttorney a confession. I didn't do it. But this
is what we do for our family."3
On May 20, 2015, the defendant, at his own request, met
with a State police trooper working with the district attorney's
3 More than three years later, and assertedly with the
defendant's permission, the attorney submitted to a recorded
interview with police in which she related the defendant's
statement and said that she had taken careful notes of the
conversation.
7
office. In a recorded interview played at trial, the defendant
told the trooper that on the morning of April 15, while his wife
was at the school meeting, he used a 60 cc plunger to inject
M.C.'s C-tube with Liquid Plumr, saline solution, and extra pain
medicine. His goal was "to kill her" in order to "put her out
of her misery." Pressed on whether his wife was also involved,
he insisted that she was not. The defendant further stated that
when M.C. was hospitalized at Tufts Medical Center in 2009, he
had tried to "end it for her" in the course of a diaper change
by dipping part of her TPN line in her stool and then
reconnecting it.
At his 2020 trial, however, the defendant testified that
this confession was false and that he had confessed only so
"that [DCF] would focus on [him] and the DCF would back off of
[his] wife and that [his] daughter could go back to her mom.
And that way, [M.C.] would grow up with . . . one parent rather
than none." The defendant also introduced expert evidence that
60 cc of Liquid Plumr could have produced a reaction for only
fifteen minutes, a much shorter time than what Dr. Ozgediz
posited. Further, two pathologists testified that M.C.'s
injuries were caused not by a caustic agent but by loss of blood
circulation to portions of her intestines and bladder.
Discussion. 1. Expert testimony on false confessions.
The defendant first argues that the judge abused his discretion
8
in allowing the Commonwealth's motion to exclude the testimony
of Alan Hirsch, an attorney and professor at Williams College,
who would have testified about the existence of false
confessions and the factors that would lead someone to make a
false confession. The defendant asserts that the judge too
strictly applied the Daubert-Lanigan4 factors to the social
science behind Hirsch's testimony.
The Daubert-Lanigan standard requires that expert testimony
"rest[] on a reliable foundation" and be "relevant to the task
at hand" (quotation omitted). Commonwealth v. Hinds, 487 Mass.
212, 217–218 (2021). The factors bearing on reliability are
"whether the scientific theory or process (1) has been generally
accepted in the relevant scientific community; (2) has been, or
can be, subjected to testing; (3) has been subjected to peer
review and publication; (4) has an unacceptably high known or
potential rate of error; and (5) is governed by recognized
standards." Commonwealth v. Powell, 450 Mass. 229, 238 (2007).
See Hinds, supra at 221. But "[n]ot all of the factors . . .
will be applicable in every case" (quotation and citation
omitted), and there are "methodological distinctions that divide
. . . hard sciences" from "soft" sciences, i.e., social
4 See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,
585-595 (1993); Commonwealth v. Lanigan, 419 Mass. 15, 25-26
(1994).
9
sciences. Hinds, supra at 222. "[A]pplication of the Daubert-
Lanigan standard to soft sciences requires flexibility with
special attention being paid to the criteria of reliability that
different disciplines develop." Id., citing Canavan's Case, 432
Mass. 304, 314 n.5 (2000).
"Whether the methodology applied by the expert satisfies
gatekeeper reliability is a preliminary question of fact," and
we review the judge's determination for abuse of discretion.
Hinds, supra at 218. "[O]ur review under this standard is
deferential and limited, [but] it is not perfunctory. A judge's
findings must apply the correct legal standard to the facts of
the case and must be supported by an examination of the record"
(quotation and citation omitted). Id. See generally L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014) (abuse of
discretion is "clear error of judgment in weighing" relevant
factors such that "decision falls outside the range of
reasonable alternatives").
Here, at a voir dire hearing, Hirsch testified that he had
a law degree but no education or training in psychology or
psychiatry. His principal expertise was in interrogation
methods. He asserted that false confessions occur with
"surprising frequency," but he could not estimate their
10
frequency in numerical terms.5 He identified three types of
false confessions: (1) "the coerced-compliant false confession
in which a suspect under interrogative pressure concludes that
the best or only way of getting out of a despairing situation is
to confess"; (2) "the internalized false confession, which is
also typically in an interrogation situation, where the suspect
actually comes to believe that he committed the crime or may
have, even though he did not"; and (3) "the voluntary false
confession . . . [involving] someone who will come forth either
completely outside of an interrogative situation or without any
interrogative pressure and claim to have committed a crime that
he did not." See generally Commonwealth v. Hoose, 467 Mass.
395, 415 n.10 (2014) (noting these types of false confessions).
Only the third category, voluntary false confessions, was
asserted to be relevant here.
Hirsch explained that voluntary false confessions could be
motivated by a desire for notoriety in high-profile cases, the
desire to protect another person, mental illness, or feelings of
guilt about other crimes. Hirsch testified that voluntary false
confessions to protect another had been seen "anecdotally" but
that he had "no idea about the[ir] frequency." Neither Hirsch
5 The closest he came was to cite a study in which six
hundred professional investigators had been asked how often they
thought innocent suspects confessed falsely during
interrogation; the average of their estimates was 4.78 percent.
11
nor any other researcher had ever conducted a study focused on
this type of false confession. In answer to the judge's
question about how his testimony could assist the jury in this
case, Hirsch said that false confessions are "deeply
counterintuitive" and difficult for lay people to understand, so
he would explain that they were "surprisingly frequent" and that
"protecting someone is something that is in the literature."
In allowing the Commonwealth's motion to exclude Hirsch's
testimony, the judge found that "his published scholarly works
are few [and] not recent." Moreover, although voluntary false
confessions to protect another had been mentioned in "some
'literature,'" Hirsch neither had conducted nor knew of any
study focused on this type of confession. "Nothing presented in
the voir dire hearing show[ed] that Hirsch's proposed testimony
[about this type of false confession] [was] based on principles
and methods that are generally accepted in the relevant
scientific community or that they have otherwise been shown to
be reliable or valid."
The judge also considered Hoose, 467 Mass. at 413-420,
where the court affirmed the exclusion of a defendant's
proffered expert testimony on false confessions in connection
with interrogations. In the course of doing so, the Hoose court
observed that such testimony might be found sufficiently
reliable to be admissible in a future case "where several of the
12
false confession factors thus far identified are present." Id.
at 420. See id. at 415 n.11, 418 (discussing factors including
impaired mental or physical condition, police use of false
evidence or offers of leniency, and social isolation). The
judge concluded that because none of those factors was present
here, the defendant's reliance on Hoose was unavailing.6
We see no abuse of discretion in the judge's decision.
Hirsch offered no reliable information or even an opinion on how
often voluntary false confessions to protect another occur (as
opposed to other types of false confessions) or on what factors
might make them more likely. Although in the social science
context we pay "special attention . . . to the criteria of
reliability that different disciplines develop," Hinds, 487
Mass. at 222, Hirsch did not describe, nor does the defendant
identify, any reliability criteria that any relevant discipline
has developed regarding Hirsch's proposed testimony. Further,
as the judge's discussion of Hoose suggested, testimony about
other types of false confessions would have been of dubious
relevance here.
6 We add that Hoose, involving a confession after
interrogation, did not focus on whether the factors discussed
therein would necessarily be relevant in a case, like this one,
of an assertedly false voluntary confession made to protect
another.
13
2. Prior bad act evidence. The defendant next argues that
the judge abused his discretion in admitting evidence that the
defendant had intentionally caused M.C.'s TPN line infections in
2009. The defendant also argues that, once the judge decided to
admit that prior bad act evidence, he further abused his
discretion by denying two defense motions aimed at countering
it. None of these arguments persuades us.
a. 2009 bad acts. The defendant filed a motion in limine
to exclude (1) the part of his 2015 confession in which he
admitted causing M.C.'s infections in 2009 by dipping her TPN
line in stool at Tufts Medical Center, and (2) Dr. Meissner's
testimony that M.C.'s 2009 infections were likely caused by
dipping her TPN line in stool.7 The Commonwealth argued in
opposition that the 2009 evidence was probative of whether the
defendant, as he had confessed before recanting, put Liquid
Plumr into M.C.'s C-tube in 2015. The judge agreed, ruling that
the 2009 evidence was "highly probative of his intent, motive,
knowledge and opportunity that, six years earlier, he introduced
a harmful substance into his daughter's medical tubing with the
7On cross-examination, Dr. Meissner acknowledged having
previously testified in the 2009 care and protection case that
he had no opinion on whether the bacteria found in M.C.'s
bloodstream had been intentionally introduced by another person.
Even if the defendant had argued this point in support of his
motion in limine, it went only to the weight of Dr. Meissner's
testimony, not its admissibility.
14
intent to kill her." The judge further considered whether the
probative value was outweighed by the risk of unfair prejudice;
concluding that it was not, he denied the defendant's motion in
limine.8
Evidence of other bad acts is inadmissible to prove the
defendant's "bad character or propensity to commit the crime
charged, but such evidence may be admissible if relevant for
some other purpose . . . , such as to show a common scheme,
pattern of operation, absence of accident or mistake, identity,
intent, or motive" (citations omitted). Commonwealth v.
Helfant, 398 Mass. 214, 224 (1986). Even if relevant for one of
these purposes, such evidence "will not be admitted if its
probative value is outweighed by the risk of unfair prejudice to
the defendant." Commonwealth v. Crayton, 470 Mass. 228, 249
8 At the time the evidence was admitted, the judge
instructed the jury about the limited purposes for which it
could be considered, including for the existence of a "pattern
of conduct." Although the defendant did not object at the time,
it appears that he did so when later reviewing a draft of the
judge's final charge. In response, the judge altered the charge
and emphatically instructed the jury to disregard, as erroneous,
his previous mentions of a pattern of conduct. On appeal, the
defendant argues for the first time that the final instruction
was insufficient to cure the asserted harm flowing from the
earlier instructions. We see no reason not to presume that the
jury followed the final instruction; if there was any error, we
see no substantial risk of a miscarriage of justice. Cf.
Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005) (where
curative instruction is requested and given, party believing it
insufficient must object, or issue is waived).
15
(2014). Although that balancing is to consider the incremental
probative value of the bad acts evidence, see Commonwealth v.
Brown, 389 Mass. 382, 385–386 & n.7 (1983), "the Commonwealth
[is] not required to show that it need[s] the prior bad act
evidence to prove its case," Commonwealth v. Copney, 468 Mass.
405, 413 (2014). Whether to admit such evidence is "committed
to the sound discretion of the trial judge and will not be
disturbed by a reviewing court absent palpable error" (quotation
and citation omitted). Commonwealth v. McCowen, 458 Mass. 461,
478 (2010).
i. Probative value. The defendant argues that the 2009
evidence had no probative value on the issues of his motive,
intent, knowledge, or opportunity, because "none of [them] were
in dispute." He points out that the jury had heard him admit in
his recorded confession that in 2015, with the motive of putting
M.C. out of her misery, he intentionally put drain cleaner in
her C-tube in order to kill her.
His position at trial, however, was that his confession was
a lie -- that he "lived for" M.C. and "ha[d] never hurt" her.
Whether he had any motive to harm her, and whether he acted
intentionally on that motive, were very much in dispute. The
judge could reasonably view the evidence that the defendant had
confessed to having and acting on the same motive in 2009 by
dipping M.C.'s TPN line in her stool -- along with corroborative
16
evidence that Dr. Meissner believed M.C.'s 2009 infections were
caused by bacteria normally found in stool -- as highly
probative of whether he had and acted on the same motive and
intent in 2015. This was a sufficient nonpropensity basis on
which to admit the 2009 evidence.9 See Commonwealth v. Keown,
478 Mass. 232, 244 (2017), cert. denied, 138 S. Ct. 1038 (2018)(defendant's embezzlement and lies years before wife's murder by
poisoning with antifreeze admissible to show his state of mind,
motive, and intent). Without the 2009 evidence, the defendant's
putting drain cleaner into M.C.'s C-tube in 2015 "could have
appeared to the jury as an essentially inexplicable act of
violence." Commonwealth v. Melendez, 490 Mass. 648, 663 (2022),
quoting Commonwealth v. Mendes, 441 Mass. 459, 464 (2004).
We are not persuaded by the defendant's argument, made for
the first time on appeal, that the 2009 evidence had no
probative value because "one extrajudicial confession may not
corroborate another extrajudicial confession." Commonwealth v.
9 We thus need not decide whether admission of that evidence
on the issues of knowledge or opportunity was also proper. The
defendant points out that his knowledge of and opportunity to
tamper with M.C.'s C-tube was undisputed. The Supreme Judicial
Court has recently "emphasize[d] the importance of specificity
and precision in the context of ruling on bad act evidence" and
has cautioned against "justifying the admission of bad act
evidence simply by reciting a list of permissible nonpropensity
purposes that have been previously accepted." Commonwealth v.
Samia, 492 Mass. 135, 148 n.8 (2023).
17
Costello, 411 Mass. 371, 375 (1991). Costello involved the rule
that, for purposes of evaluating the sufficiency of the
evidence, "a conviction cannot be based solely [o]n evidence of
a defendant's uncorroborated extrajudicial confession." Id. at
374, citing Commonwealth v. Forde, 392 Mass. 453, 457-458
(1984). Here, the Forde corroboration of the defendant's
confession to putting drain cleaner in M.C.'s C-tube was
provided not by the 2009 evidence but by Dr. Ozgediz's testimony
that M.C.'s 2015 injuries were caused by a caustic substance.
In other words, the Commonwealth met the Forde requirement with
medical evidence, rather than attempting to meet it with
evidence of another confession, as in Costello. The
Commonwealth offered the defendant's confession to having tried
to kill M.C. in 2009 not to provide Forde corroboration10 but for
the narrower purpose of showing that, because he had the motive
and intent to kill M.C. in 2009, the defendant was more likely
10The defendant's confession to having tried to kill M.C.
in 2009 did not require corroboration in the Forde sense,
because he was not being tried for any charge based on the 2009
events. In any event, Dr. Meissner's testimony provided that
corroboration, and was relevant to a disputed issue, because the
defendant had recanted that confession and the Commonwealth was
entitled to show with medical evidence that the confession was
true.
18
to have had the same motive and intent in 2015. Costello is
thus inapposite here.11
We also reject the defendant's argument based on the
superficially similar case of Brown, 389 Mass. 382, which
involved allegedly fabricated confessions both to charged
conduct and to similar prior bad acts. Id. at 383-386.
Although the court held that the evidence of confessions to the
prior bad acts should not have been admitted, it did not adopt
any general rule about the probative value of such evidence.
Id. at 385-386. The court held only that in the particular
circumstances of that case, the confessions to the four charged
offenses were adequate to achieve the Commonwealth's stated
purpose of proving a common scheme or plan, and so the
incremental probative value of the confessions to the prior bad
acts was minimal and did not outweigh the resulting undue
prejudice. Id. That case-specific analysis is inapplicable
here.
ii. Risk of unfair prejudice. The judge reasonably
balanced the probative value of the 2009 evidence against the
potential for unfair prejudice. "Relevant evidence is presumed
11Costello is also inapposite because there the
Commonwealth sought to corroborate a confession to crimes with
evidence that the defendant had made a second confession to
those same crimes, not to an earlier crime. Costello, 411 Mass.
at 373-374.
19
to be prejudicial or harmful to the party against whom it is
offered, but exclusion is warranted only when the prejudice is
unfair. . . . Unfair prejudice may result when jurors are
unnecessarily exposed to inflammatory evidence that might cause
them to decide the case based on emotion" (citations omitted).
Mass. G. Evid. § 403 note (2023).
Here, the emotional impact of the bad act evidence flowed
from the defendant's own admission -- as part and parcel of his
later-recanted confession to having tried to kill M.C. in 2015
-- that he had also tried to kill her in 2009. The judge could
reasonably have concluded that the disturbing nature of the 2009
acts to which the defendant confessed would not distract the
jury from the central question, which was whether to believe his
confession or his recantation. "It has long been held that, in
balancing the probative value against the risk of [unfair]
prejudice, the fact that evidence goes to a central issue in the
case tips the balance in favor of admission." Commonwealth v.
Jaime, 433 Mass. 575, 579 (2001).
b. Delay of trial. Once the judge ruled on January 23,
2020 (eleven days before trial), that evidence of the 2009 acts
would be admitted, the defendant moved to stay the proceedings
to allow him time to obtain an infectious disease expert to help
counter Dr. Meissner's expected testimony. The motion asserted
that, until the judge's ruling, the defendant "had no reason to
20
believe that events from 2009[] would be relevant to events in
2015." The judge denied the motion. The defendant argues that
this ruling unfairly prevented him from effectively cross-
examining Dr. Meissner. We are unpersuaded.
"The decision whether to grant a motion to continue lies
within the sound discretion of the trial judge" and is reviewed
for abuse of that discretion. Commonwealth v. Miles, 420 Mass.
67, 85 (1995). "However, a trial judge may not exercise his
discretion in such a way as to impair a defendant's
constitutional right to have counsel who has had reasonable
opportunity to prepare a defense" (quotation and citation
omitted). Id. In reviewing the judge's decision, we focus in
particular on the "reasons presented to the trial judge"
(quotation and citation omitted). Id. See Commonwealth v.
Super, 431 Mass. 492, 497 (2000).
Here, the record belies the defendant's claim that, until
late January of 2020, he had no reason to believe that the
events of 2009 would be at issue. On September 4, 2019, the
Commonwealth filed a three-page anticipated witness list
identifying Dr. Meissner, among others from Tufts Medical
Center, as a witness on the issue of the defendant's other bad
acts. On September 18, 2019, the Commonwealth filed a notice of
its intention to call Dr. Meissner as an expert witness to offer
opinions regarding M.C.'s 2009 blood infections and their
21
causes. At a hearing on September 20, 2019, the Commonwealth
confirmed this intention. On October 24, 2019, on the
defendant's motion for disclosure of prior bad acts the
Commonwealth expected to offer at trial, the judge struck the
Commonwealth's submissions mentioned above, essentially on the
ground that they did not describe the evidence with sufficient
specificity. The judge ordered the Commonwealth to file a new
and more detailed description of that evidence. The
Commonwealth did so on December 19, 2019, more than six weeks
before trial, and once again stated that Dr. Meissner would
testify regarding M.C.'s blood infections. The defendant's
brief acknowledges that this response was "appropriate[]."
The judge could thus have concluded that, although the
Commonwealth's disclosures were at times deficient, the
defendant knew as early as five months before trial, and
certainly no later than six weeks before trial, that the
Commonwealth would call Dr. Meissner to testify. Indeed, the
fact that, on January 13, 2020, the defendant filed the motion
in limine to preclude that testimony showed he was on notice
that the evidence might otherwise be admitted. Although he no
doubt hoped that the motion would be allowed, he could not rely
on that hope. Thus, upon denying the motion in limine, the
judge did not abuse his discretion in rejecting the defendant's
claim, eleven days before trial, that he needed a stay because
22
he previously had "no reason to believe" that Dr. Meissner would
testify. Moreover, the defendant did not, and on appeal does
not, identify any specific issue on which the lack of a defense
expert prevented him from effectively cross-examining
Dr. Meissner.12
c. Evidence of order ending 2009 care and protection case.
The defendant argues that, after the judge admitted the 2009 bad
acts evidence, he abused his discretion by denying the
defendant's motion that he take judicial notice, and allow the
jury to hear, of the order that ended the 2009 care and
protection case. That one-page order, issued by a Juvenile
Court judge in March 2011, dismissed the case because the
defendant and his wife "were found to be fit" parents and "there
was no need for an adjudication of [c]are and [p]rotection."
The Commonwealth opposed the motion on two grounds:
(1) although the content of the 2011 order was undisputed, it
represented the Juvenile Court judge's opinion and so was not
relevant; and (2) the jury had already heard evidence that the
12The judge also could have considered whether, between the
time the defendant was indicted in August of 2015, and the
scheduled beginning of the trial in February of 2020, trial
counsel had gained sufficient knowledge of M.C.'s medical
history, and various experts' views of it, to cross-examine
Dr. Meissner effectively without the assistance of an additional
expert. Our review of the transcript suggests that counsel did
so with considerable skill.
23
defendant and his wife, after losing custody of M.C. to DCF for
eighteen months starting in 2009, had regained custody after a
trial and a judge's order. The judge denied the motion for the
reasons argued by the Commonwealth.
This ruling was within the judge's discretion. The 2011
order represented the Juvenile Court judge's opinion that DCF
failed to meet its burden of proving the allegations of
unfitness in the 2009 care and protection case. That opinion
was of marginal, if any, relevance to the issues in this case.
The defendant's sole assertion of relevance is that the jury
here were entitled to learn that "another judicial body found
Dr. Meissner's allegations untrue." But nothing in the 2011
order did any such thing; the order did not mention Dr. Meissner
or his allegations. Moreover, even if the Juvenile Court judge
did not credit Dr. Meissner's testimony in that case --
something that cannot be determined from the 2011 order -- the
credibility of Dr. Meissner's testimony in this case was a
matter for this jury.13
13The defendant's reliance in this connection on
Commonwealth v. Fayerweather, 406 Mass. 78 (1989), is
unavailing. There the court held that it was error to exclude
evidence in a psychiatric hospital record, including statements
by the complaining witness, that bore directly on her ability to
accurately perceive her interactions with the defendant and that
was offered to impeach her trial testimony. Id. at 81-83 & n.1.
24
3. Statement of intention to confess. The defendant
argues that the judge abused his discretion in precluding the
defendant's attorney in his 2015 care and protection case from
testifying that the defendant told her of his intention to
confess. Specifically, the attorney would have testified that
on May 8, 2015 -- twelve days before he confessed -- the
defendant said to her, "I am going to give the [d]istrict
[a]ttorney a confession. I didn't do it. But this is what we
do for our family."14 The Commonwealth moved in limine to
preclude as hearsay the attorney's testimony that the defendant
made that statement. The defendant argued, as relevant here,15
that his statement fell within the state of mind exception for
statements indicating an intention to engage in particular
conduct. See Commonwealth v. Avila, 454 Mass. 744, 767 (2009).
The judge ruled that the exception was inapplicable. We
conclude that the judge did not abuse his "broad discretion in
determining whether [this] hearsay exception applies" (citation
omitted). Commonwealth v. Yat Fung Ng, 491 Mass. 247, 260
(2023) (discussing state of mind exception).
14We adopt the punctuation used in the parties' motion
papers, but nothing turns on it. Our ruling would be the same
if the three phrases appeared in a single sentence, separated by
different punctuation, or linked by different conjunctions.
15The defendant has not pressed on appeal the other grounds
for admissibility he argued to the judge.
25
"Statements, not too remote in time, which indicate an
intention to engage in particular conduct, are admissible to
prove that the conduct was, in fact, put in effect. Statements
of memory or belief to prove the fact remembered or believed do
not fall within this exception." Mass. G. Evid.
§ 803(3)(B)(ii). See Commonwealth v. Britt, 465 Mass. 87, 91
(2013); Commonwealth v. Fredette, 97 Mass. App. Ct. 206, 219–220
(2020).
Here, the judge reasoned that the only part of the
defendant's statement expressing an intention to engage in
"conduct" was, "I'm going to give the [d]istrict [a]ttorney a
confession." The judge ruled that this statement was
inadmissible "simply because it's not relevant" that the
defendant told a third party he was going to confess. On
appeal, the defendant does not challenge this aspect of the
judge's analysis.
The parts of the statement that the judge viewed as "of
particular value to the defense" were, "I didn't do it," and,
"this is what we do for our family." The defendant wished to
show not that he had confessed but that his confession was false
and to explain why he had made it. The judge ruled that those
parts "aren't conduct," which we take to mean that they did not
express an intention to engage in conduct.
26
This ruling was within the judge's "broad discretion." Yat
Fung Ng, 491 Mass. at 260. The statement, "I didn't do it,"
does not contemplate future conduct. Rather, it states the
defendant's memory or belief and was offered to prove the fact
remembered or believed (that he did not "do it"). Thus, the
statement "do[es] not fall within th[e] exception." Mass. G.
Evid. § 803(3)(B)(ii). "Th[e] exception applies only to the
declarant's present intent to act, not to past conduct."
Commonwealth v. Pope, 397 Mass. 275, 281 (1986) (suicide note
stating, "I killed Jimmy," did not disclose intent to kill in
future and so not within exception). See Commonwealth v.
Bianchi, 435 Mass. 316, 327 & n.15 (2001) (suicide note
purporting to explain past conduct inadmissible under state of
mind exception); Fredette, 97 Mass. App. Ct. at 219-220. See
also M.S. Brodin & M. Avery, Massachusetts Evidence § 8.8, at
635 (2019 ed.). And the statement, "this is what we do for our
family," offered to explain why the defendant intended to
confess, was no more relevant than the statement of intent
itself.16
16The defendant argues that his entire statement should
have been admitted under the doctrine of verbal completeness.
But that doctrine applies only where there is a need to explain
a portion of a statement already admitted in evidence, which was
not the case here. See Crayton, 470 Mass. at 246-247.
Likewise, the defendant's argument that relevant statements must
27
The defendant's reliance on Commonwealth v. Vermette, 43
Mass. App. Ct. 789 (1997), has some force but ultimately is
unavailing. In Vermette, the defendant, charged with a
shooting, introduced third-party culprit evidence that one
Gonsalves had confessed to the shooting. Id. at 792-793 & n.3.
The Commonwealth then introduced evidence that Gonsalves,
deceased by the time of trial, had told a witness that he
(Gonsalves) "was going to get $400,000 for 'taking the rap' for
the shooting" and that "'he was going to make tapes and letters
and fake his death,' after which the defendant's father would
fly him to the Bahamas." Id. at 796. Police later discovered
Gonsalves's body along with letters and tape recordings in which
he confessed to the shooting. Id. at 792-793. The Commonwealth
offered Gonsalves's earlier statements to the witness "to show
that he, Gonsalves, intended to lie and confess to [the
shooting], a showing from which the jury could infer that his
subsequent statements, the letters and the tapes, were the doing
of the intended act, viz., lying. As such, they were properly
admitted" as statements of Gonsalves's intention. Id. at 801-
802.
be given context presupposes that some part of his statement was
relevant and admissible in the first place.
28
We acknowledge that Vermette, like this case, involved a
statement of intention to confess along with an implication that
the confession would be false. The critical statements in
Vermette, however, expressed the declarant's intention to engage
in future conduct,17 whereas the critical statement here, "I
didn't do it," is purely about the past. "Declarations of
intention, casting light upon the future, have been sharply
distinguished from declarations of memory, pointing backwards to
the past. There would be an end, or nearly that, to the rule
against hearsay if the distinction were ignored." Shepard v.
United States, 290 U.S. 96, 105–106 (1933). See Commonwealth v.
Lowe, 391 Mass. 97, 104-106, cert. denied, 469 U.S. 840 (1984)
(emphasizing this distinction). The defendant's out-of-court
statement denying past conduct, which he plainly offered for the
truth of the denial, did not become admissible merely because he
accompanied it with a statement -- irrelevant here -- that he
intended to confess to that conduct.18
4. Motion for new trial. The defendant's motion for a new
trial asserted that trial counsel was ineffective in four ways:
17The admissibility of the statement that the defendant's
father would fly the declarant to the Bahamas was not separately
considered. Vermette, 43 Mass. App. Ct. at 800-802.
18Ruling as we do, we need not address whether the
defendant's statements, made twelve days before his confession,
were too remote in time to be admissible.
29
(1) by failing to offer a prior consistent statement of the
defendant in order to rehabilitate his credibility after cross-
examination, (2) by failing to object to Dr. Ozgediz's testimony
that he was "a hundred percent certain" of the cause of M.C.'s
injuries, (3) by failing to object to the Commonwealth's cross-
examination of the defendant, and (4) by failing to object to
factual inaccuracies in the Commonwealth's closing argument. In
a thorough written decision, the judge rejected each of these
claims.
We review the judge's decision for "a significant error of
law or other abuse of discretion," and we "extend[] special
deference to the action of a motion judge who was also the trial
judge." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). To
prevail on a claim of ineffective assistance of counsel, the
defendant must establish that counsel's performance fell
"measurably below that which might be expected from an ordinary
fallible lawyer" and "likely deprived the defendant of an
otherwise available, substantial ground of defence."
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
a. Prior consistent statement. The Commonwealth's cross-
examination sought to cast doubt on the defendant's testimony
that his 2015 confession was false. The defendant argued that
trial counsel was ineffective in failing to rebut this attack by
offering the defendant's pre-confession statement to his care
30
and protection attorney that he "didn't do it" but was
confessing for the sake of his family. The judge ruled that the
statement would have been inadmissible in any event because it
had not been made before the defendant had a motive to
fabricate, and thus counsel was not ineffective in failing to
offer it. See Commonwealth v. Lally, 473 Mass. 693, 703 n.10
(2016) (not ineffective to decline to file motion that would not
have materially aided defense). We see no error or other abuse
of discretion in this ruling.
A prior consistent statement is usually inadmissible,
because "the testimony of a witness in court should not need --
and ought not -- to be pumped up by evidence that the witness
said the same thing on some prior occasion" (quotation and
citation omitted). Commonwealth v. Morales, 483 Mass. 676, 678
(2019). However, "[i]f the court makes a preliminary finding
that there is a claim that the witness's in-court testimony is
the result of recent contrivance or a bias, and the prior
consistent statement was made before the witness had a motive to
fabricate or the occurrence of the event indicating a bias, the
evidence may be admitted for the limited purpose of rebutting
the claim of recent contrivance or bias." Mass. G. Evid.
§ 613(b)(2). See Commonwealth v. Caruso, 476 Mass. 275, 284
(2017).
31
The use of prior consistent statements for this purpose
"should be allowed only with caution, and where the probative
value for the proper purpose is clear" (quotation and citation
omitted). Commonwealth v. Lareau, 37 Mass. App. Ct. 679, 683
(1994). The test is "one of probative value[:] whether the
prior consistent statement has a logical tendency to meet and
counter the suggestion that the witness has recently contrived
his testimony for purposes of trial." Commonwealth v. Darden, 5
Mass. App. Ct. 522, 530 (1977). "In making that determination,
a measure of discretion must be given to the trial judge . . . ,
who is in a better position than an appellate court to evaluate
the subtleties and nuances of the trial . . ." (citation
omitted). Id. See Caruso, 476 Mass. at 285; Lareau, supra.
Here, the judge ruled that, although the Commonwealth had
indeed argued that the defendant's claim of the confession's
falsity was a contrivance, the defendant already had a motive to
claim its falsity when he spoke to his care and protection
attorney. That motive was "to avoid conviction." The defendant
testified that, before he confessed, he knew that he would be
arrested once he did so. Therefore, as the judge put it, when
the defendant spoke to the attorney, he already had a "motive to
32
undermine the confession he was about to give."19 Contrary to
the defendant's argument that a person (such as himself) without
legal training would not be motivated to make such statements,
we have previously recognized the danger that once a "witness
has a reason to build up his position," the witness may "know[]
that repetitions of his claims may be helpful later to blunt the
force of an accusation that he is fabricating his testimony."
Commonwealth v. Healey, 27 Mass. App. Ct. 30, 35 n.5 (1989).
The prior consistent statement doctrine is structured to exclude
such statements. See id.Although the defendant may have had an additional,
potentially conflicting motive for making the confession
itself,20 the defendant does not dispute that establishing the
19We reject the defendant's argument that the Commonwealth
claimed at trial that "it was only now," i.e., at the time of
trial, "that he was facing conviction and his daughter had been
permanently taken away that [he] was recanting" his confession.
Nothing in the record supports this argument. The defendant
testified that he knew before he confessed that the confession
would lead to his arrest and the loss of custody of M.C.
20As the judge recognized, the defendant claimed another
motive: "a motive to confess -- in order to (as he testified)
ensure that [his daughter] would remain in at least her mother's
custody." That motive was in tension with his motive to avoid
conviction; recanting might also jeopardize his stated goal of
getting "DCF [to] back off of my wife [so] that my daughter
could go back to her mom [and] grow up with . . . one parent
rather than none." But the Commonwealth was not required to
present an internally consistent explanation of all the
defendant's possible motives.
33
falsity of his confession would have reduced the likelihood of
conviction. And the motive that the Commonwealth suggested he
had at trial -- to falsely claim the confession's falsity in
order to avoid conviction -- could, if it existed at all,
logically also be thought to have existed at the time he made
his statement to his care and protection attorney. The judge
did not abuse his discretion in so concluding.
Accordingly, if the defendant's 2015 confession was false,
his prior statement to the attorney that it was going to be
false did not logically rebut the Commonwealth's suggestion that
he recanted the confession at trial only to avoid conviction.
The defendant made that prior statement at a time when he
already wanted to avoid conviction, and thus it was not "made
before the witness had a motive to fabricate." Mass. G. Evid.
§ 613(b)(2).
Contrary to the defendant's argument, the judge's analysis
did not rest on any implicit conclusion that the confession was
true and that the defendant lied about its being false. Those
were obviously jury questions. Nor did the judge conclude that
the Commonwealth was correct in suggesting that the defendant's
testimony was motivated by the desire to avoid conviction. The
question before the judge was not one of fact, but solely one of
logic and probative value: whether the defendant's prior
consistent statement "ha[d] a logical tendency to meet and
34
counter the suggestion that [he had] recently contrived his
testimony for purposes of trial" (emphasis added). Darden, 5
Mass. App. Ct. at 530. The judge did not abuse his discretion
in concluding that because the prior statement had no such
logical tendency, offering it in evidence would have been futile
and counsel was not ineffective in failing to do so. See Lally,
473 Mass. at 703 n.10.
b. Dr. Ozgediz's testimony. The defendant argued that
counsel should have objected to Dr. Ozgediz's testimony that he
was "a hundred percent certain" that M.C.'s injuries were caused
by a chemical.21 Although the judge agreed that the testimony
was "improper," he rejected this claim of ineffective assistance
on the ground, among others, that even if counsel's failure to
object was not strategic, the defendant had not shown sufficient
prejudice.22
21The defendant argued that counsel should also have
objected to Dr. Ozgediz's use of the phrase "a hundred percent"
in testifying that in his opinion, M.C.'s C-tube could have been
flushed with saline solution a day after a caustic substance had
been introduced into the C-tube. The judge acknowledged the
argument but did not analyze it separately. The defendant makes
no separate argument regarding this statement, and we conclude
that no separate analysis is required.
22We pass over the judge's rulings that, although an
objection would likely have been sustained, counsel's decision
not to object could have been strategic.
35
The judge ruled that the over-all impact of a successful
objection "would likely have been minimal." He reasoned as
follows:
"This was one statement . . . made in the context of hours
of testimony from Dr. Ozgediz regarding his treatment of
[M.C.], his attempts to discover the source of her
injuries, and the factual and scientific basis for his
conclusion that they were caused by the injection of a
caustic substance into her cecostomy tube. This plethora
of evidence would still have been before the jury even if
the improper 'one hundred percent' statement had been
stricken. Its admission did not deprive [the defendant] of
an otherwise-available defense -- indeed, he ably and amply
challenged Dr. Ozgediz's opinion with three experts of his
own -- nor does it raise a significant concern that the
jury would have otherwise reached a different conclusion."
On appeal, the defendant merely repeats the same prejudice
arguments made in his motion for a new trial. Mindful of the
"special deference" due a motion judge who was also the trial
judge, Grace, 397 Mass. at 307, and concluding that the judge
reached a reasonable decision after considering the relevant
factors, L.L., 470 Mass. at 185 n.27, we reject the defendant's
claim of an abuse of discretion.
c. Cross-examination of defendant. The defendant next
argues that counsel should have objected to certain rhetorical
questions the prosecutor posed in cross-examining the defendant.
These included whether the defendant, who had cried during both
his 2015 confession and his trial testimony recanting it, had
"[t]aken theater courses" or "won an Oscar," and whether he felt
"smug" after he slipped into an answer on cross-examination a
36
reference to his wife visiting him in jail, despite the judge's
previous order excluding such testimony.
The judge, applying the standards in Commonwealth v.
Murphy, 57 Mass. App. Ct. 586, 589-590 (2003), for evaluating
assertedly inflammatory or degrading questions, agreed that the
prosecutor's rhetorical questions were improper. He concluded,
however, that trial counsel's failure to object did not
"remotely" create the requisite prejudice for an ineffective
assistance claim. The judge recognized that the prosecutor and
the defendant had engaged in "vigorous verbal sparring" and that
in some instances here, as in Murphy, "the defendant deflected
the question by turning it back on the prosecutor." Murphy,
supra at 591. On balance, the judge concluded that the improper
questions "appear[] to have come and gone without fanfare." Id.
The judge did not abuse his considerable discretion in so
ruling.
d. Commonwealth's closing argument. Finally, the
defendant argued that counsel was ineffective in failing to
object to various asserted inaccuracies in the Commonwealth's
closing argument. These concerned an entry on the defendant's
work timesheet, the results of a computed tomography scan taken
at YNHH, Dr. Ozgediz's testimony, and matters that called into
question the credibility of the defendant's experts. The judge
reviewed each of these claims in detail and concluded that, with
37
one minor exception, the prosecutor did not misrepresent the
evidence. As for the exception, the judge ruled that the
prosecutor's description of one statement by Dr. Ozgediz "may
have been technically inaccurate from a medical standpoint,
[but] it did not misstate or misrepresent the substance of
Dr. Ozgediz's testimony."
We have carefully reviewed each of the defendant's
arguments and the judge's careful resolution of them. No
purpose would be served by repeating the judge's analysis.
There was no abuse of discretion.23
Conclusion. We affirm the judgments and the order denying
the defendant's motion for a new trial.
So ordered.
23We are unpersuaded by the defendant's further argument
that even if no single error warrants relief, the cumulative
effect of the asserted errors justifies a new trial.