COMMONWEALTH v. PRATT (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in the District Court, the defendant, Michael Pratt, was convicted of assault and battery. He appeals, claiming error in the preclusion of certain testimony regarding the victim, D.P.'s, potential bias. We affirm.

Background. D.P. is the mother of the defendant's girlfriend, now wife, E.P. E.P. has three children aged twelve years, six years, and nine months. The defendant is the father of the infant.

On January 27, 2016, D.P. received a telephone call from E.P.'s eldest child asking D.P. to come to E.P.'s house. When D.P. arrived, E.P. was on the couch, and the infant was on the living room floor. The defendant walked into the room and began arguing with D.P. He attempted to keep D.P. from checking on the others and as he walked across the room he staggered backwards, and accidentally stepped on the infant's foot. The defendant then pushed D.P. “really ․ hard,” into a couch.² The eldest child witnessed the assault and called 911.

Police Officer Jerome Ciolino arrived on the scene and spoke with both the defendant and E.P. The defendant acknowledged that he had attended a methadone clinic and had used his medically prescribed marijuana earlier in the morning, and that he was feeling the effects of both substances. Ciolino thought E.P. “seemed ․ slightly off.” E.P. stated that she was going to kill herself and was transported to the hospital. Ciolino took statements from E.P., the defendant, and D.P. while he was on the scene. According to D.P., she did not mention the push to Ciolino at the scene because she was focused on her daughter and grandchildren. Later that day D.P. went to the police department to report the push.

At trial, defense counsel tried to elicit testimony from both D.P. and E.P. about D.P.'s relationships with her grandchildren's fathers, including the defendant, and her potential bias towards them. D.P. testified that the defendant “made [her] life difficult” and that she has a “hard time” with “what he's done to [her] family.” When asked if it was true that she did not “like” the defendant, she answered, “Yes.” In addition, E.P. testified that D.P. is “in contempt [of court] because she's not allowing [the eldest child's] father to see [her].” The judge sustained objections to additional questions about D.P.'s relationships with the other fathers.

Discussion. We review the judge's decision to exclude certain testimony for abuse of discretion or other error of law. Commonwealth v. O'Brien, 432 Mass. 578, 588 (2000). Accordingly, we give great deference to the judge's decision and will not disturb it absent clear error. Commonwealth v. Grassie, 476 Mass. 202, 214 (2017), citing L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The defendant contends the excluded evidence was relevant to prove D.P.'s bias. Evidence is relevant if it has a “rational tendency to prove an issue in the case,” Commonwealth v. LaCorte, 373 Mass. 700, 702 (1977), or make a desired inference “more or less probable than it would be without the evidence” (citation omitted). Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480, 485 (2004).

A criminal defendant has a right under the Sixth Amendment to the United States Constitution and under art. 12 of the Massachusetts Declaration of Rights both to cross-examine the Commonwealth's witnesses, see Commonwealth v. Taylor, 455 Mass. 372, 380 (2009), and to present a full defense where he may call and question his own witnesses, see Commonwealth v. Freeman, 442 Mass. 779, 784 (2004). However, this right is not absolute. Id. Witness testimony that is relevant may be precluded if it is cumulative, see Commonwealth v. Hicks, 377 Mass. 1, 8 (1979), or if “the proposed evidence is of no more than marginal value,” Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 187 (2013), citing Commonwealth v. Tam Bui, 419 Mass. 392, 401, cert. denied, 516 U.S. 861 (1995). Moreover, if a witness's potential bias is made apparent to the jury, the judge may exclude other evidence as cumulative. Commonwealth v. Allison, 434 Mass. 670, 681 (2001).

Assuming without deciding that the excluded evidence was relevant, it was cumulative of other evidence of D.P.'s bias. Specifically D.P. testified that she did not like the defendant, that he made her life difficult, and that he negatively affected her family. Additionally, E.P. testified that D.P. had been keeping the eldest child's father from seeing her, further alerting the jury to D.P.'s potential bias. The judge was within his discretion to limit further testimony on this issue. Commonwealth v. Omonira, 59 Mass. App. Ct. 200, 207 (2003). Contrast Kindell, 84 Mass. App. Ct. at 190 (preclusion of relevant evidence reversible error where evidence of bias yet to be established).

Finally, even if we were to conclude that the judge erred in precluding certain evidence, any error was harmless because the defendant failed to demonstrate prejudice. See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005), citing Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). Both E.P. and D.P. testified about the nature of D.P.'s relationships, and the jury were free to weigh that evidence as they deemed appropriate. The defendant offers no other basis on which to conclude that the evidentiary rulings prejudiced him.

Judgment affirmed.

FOOTNOTES

2.   E.P. testified that D.P. fell while she was already on the floor with the infant and that she was not pushed. On cross-examination, the defendant initially testified that D.P. was “in [his] face ․ attacking [him]” during the entire encounter, but subsequently stated that she fell while she was kneeling down.