COMMONWEALTH v. WASHINGTON (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Convicted after a jury trial of assault and battery on a family or household member, the defendant, Kimani Washington, appeals.² He contends that the trial judge infringed upon his right to consult with counsel and erred in restricting cross-examination regarding the victim's open criminal case. We affirm.

Background. The morning after spending the night together, the defendant and the victim, Cheree Kersey, started arguing about text messages that the victim found on the defendant's phone. These messages were from a woman named Garland Diaz. The argument became physical, and the defendant struck the victim in the right eye. The victim called 911, and the defendant was arrested shortly after.

Defendant's right to counsel. On the second day of trial, at sidebar after the Commonwealth rested its case, the trial judge asked the defendant's counsel if she was going to call any witnesses. Counsel asked for five minutes to confer with the defendant, but the trial judge was reluctant to grant five minutes because the defendant had been twenty minutes late to trial. Instead, the trial judge stated,

“I'll give you a couple of minutes at the table ․ I'm not going to give him five minutes to decide something that he should have known last night and I don't believe, unless you tell me otherwise, that the two witnesses who testified affect this strategic decision to testify today.”

Defense counsel then asked, “Give me two minutes,” and the judge responded, “Sure. No problem.”

The defendant argues that he was deprived of his right to communicate with his attorney to evaluate the Commonwealth's case and decide whether to take the stand. The defendant has a right to consult with counsel to determine whether to testify. See Brooks v. Tennessee, 406 U.S. 605, 612 (1972) (“Whether the defendant is to testify is an important tactical decision as well as a matter of constitutional right”). It is a violation of this right to absolutely prohibit contact. See Geders v. United States, 425 U.S. 80, 91 (1976) (order preventing defendant from consulting counsel “about anything” during overnight recess impinged upon his Sixth Amendment to United States Constitution right to assistance of counsel). Nonetheless, the right to confer with counsel is not absolute, and a judge may impose reasonable limits on communications during a trial. See Perry v. Leeke, 488 U.S. 272, 280-285 (1989) (barring communications with counsel during fifteen-minute break between defendant's direct testimony and cross-examination constitutionally permissible). See also Commonwealth v. Curry, 368 Mass. 195, 199 (1975) (defendant's right to counsel not violated when judge prohibited him from conferring with counsel during a view, as defendant had “ample opportunity” to speak with counsel at other times).

Here, although the judge initially denied counsel's request for five minutes to confer, the judge ultimately agreed to counsel's request for “two minutes.” Defense counsel did not object. This might be a different case if the judge had absolutely prohibited the defendant from speaking with counsel or if counsel had objected to the limitation imposed. However, because the defendant had other opportunities to speak with counsel in addition to the “two minutes” requested, the judge did not deprive the defendant of his right to counsel.

Defendant's right to confront witnesses. The defendant argues that the trial judge erred in limiting his cross-examination of the victim about an open criminal case concerning Diaz, which the defendant contends was relevant to establish the victim's motive to lie. See Commonwealth v. Connor, 392 Mass. 838, 842 (1984). The defendant's claim fails as a factual matter. While defense counsel was cross-examining the victim, the judge called both attorneys to sidebar and asked whether counsel intended to ask the victim about the open criminal case. Defense counsel responded in the affirmative. The trial judge stated, “You can cross-examine her on their relationship [with Diaz], but you're not going to ask her if there is an outstanding case against each other or if there is a legal action in terms of a restraining order.” Defense counsel continued her cross-examination of the victim and questioned her about her relationship with Diaz. Notwithstanding the judge's earlier directive, defense counsel asked the victim if she had been arrested for, and “accused ․ of[,] maliciously destroying” Diaz's car. The victim admitted that she had been accused of vandalizing Diaz's car, that she had spent a night in jail, and that the case was still open. Defense counsel asked if it was the victim's “understanding that the Commonwealth is willing to dismiss that case upon the payment of restitution,” and the victim answered that it was. In closing argument defense counsel again referred to the victim's open malicious destruction of property case involving Diaz. The defendant was not limited in cross-examining the victim or arguing about the victim's motive to lie.

Judgment affirmed.

FOOTNOTES

2.   The jury found the defendant not guilty on counts of kidnapping and intimation of a witness.