COMMONWEALTH v. SHAKUR (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from his conviction, after a jury trial, of assault and battery, G. L. c. 265, § 13A (a).² He argues first that the judge's limitation of his cross-examination into the victim's bias violated his confrontation rights under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights.

“A criminal defendant has the constitutional right to cross-examine a prosecution witness to show that the witness is biased․ The right is not absolute, however, and the judge has broad discretion to determine the scope and extent of cross-examination.” Commonwealth v. Johnson, 431 Mass. 535, 538 (2000). The constitutional inquiry is not the traditional balancing of probative value and unfair prejudice, for “[i]t matters not that the evidence would reveal an otherwise inadmissible fact, such as the witness's commission of a crime.” Commonwealth v. Aguiar, 400 Mass. 508, 513 (1987). Rather, “[t]o determine whether the judge unreasonably limited cross-examination, ‘we weigh the materiality of the witness's direct testimony and the degree of the restriction on cross-examination.’ ” Commonwealth v. Vardinski, 438 Mass. 444, 451 (2003), quoting Commonwealth v. Miles, 420 Mass. 67, 72 (1995).

The defendant's theory of the case was that the victim -- the only eyewitness -- fabricated the incident. The victim testified that on the date in question she stayed up drinking alcohol all night with the defendant, and the defendant sought to elicit that the victim was a criminal defendant in a court case being heard the next day on which she had already once defaulted, and that the court house was far from where she lived. Defense counsel sought this testimony to show that “she needed to cover as to why she did not appear in court the next day, and she wasn't in a condition to go to court the next day and appear in court in the condition she was in.”

The judge initially only permitted defense counsel to ask the victim whether she had an “appointment” the next day. But, whether or not such a limitation would have been too restrictive, in response to this question, the victim responded, “For court, yes.” The Commonwealth moved to strike this testimony, and the judge denied the motion. Later, defense counsel asked the victim whether it would be important that she appear in court the next morning. The victim responded that it would be important “because I had a court order. So it's always important to go to court to handle your business ․ rather than hide from things.” This testimony, too, was not stricken from the record.

Given the evidence that was ultimately admitted, there was no unreasonable limitation of the defendant's right to cross-examine the victim. The victim explicitly told the jury that she had a “court order” to be in court the following morning. Moreover, her statement that it is important to “handle your business ․ rather than hide from things” at least strongly suggested that she had to appear in her own matter. And although nothing in her testimony suggested that she had already defaulted, given her testimony that she was under court order to appear, we find no constitutional error in limiting cross-examination on this point. Nor do we find constitutional error in forbidding questioning on the distance between the victim's house and the court, for the key issue was whether the victim was required to appear at all.

The defendant also argues that the jury's exposure to three instances of prior bad acts, combined with an allegedly improper voir dire question, created a substantial risk of a miscarriage of justice. The Commonwealth did not seek to admit any of the bad acts; all were spontaneously volunteered by witnesses. First, the victim volunteered that, at some point prior to the incident, she had had a restraining order against the defendant. The defendant immediately moved to strike, and the motion was granted with a curative instruction that “[t]hat information ․ is not to be considered by you in any fashion whatsoever.” Second, the victim's mother testified that “I know she was battered before.” The judge also granted the defendant's immediate motion to strike, instructing that “the jury should disregard it.” Third, the victim's neighbor, with whom she had spoken immediately after the incident, testified during the prosecutor's direct, in response to a question concerning why the victim looked nervous or upset, “Because she was, like, making oh -- how can [I] say it, like -- oh, I got in a fight again“ (emphasis added). Defense counsel made an objection -- the grounds for which counsel did not specify, and on which the judge did not explicitly rule ³ -- but there was no motion to strike, and the answer remained in the record.

The defendant argues that these statements should have led the judge to declare a mistrial, though no motion for a mistrial was made. “Where a party seeks a mistrial in response to the jury's exposure to inadmissible evidence, the judge may rely on curative instructions to correct any error and to remedy any prejudice․ As long as the judge's instructions are prompt and the jury do not again hear the inadmissible evidence, as here, a mistrial is unnecessary.” Commonwealth v. Garrey, 436 Mass. 422, 435 (2002). Here, two of the three answers were immediately stricken, and only one -- the stricken reference to the restraining order -- referred specifically to the defendant. The nonstricken reference was also fleeting (comprising the single word “again”) and vague as to the nature of the prior “fight.” The judge did not err by not sua sponte granting a mistrial.

Nor does the jury voir dire question that the defendant challenges -- “[I]f you learned a partner in a domestic relationship maintained that relationship after making allegations of physical abuse, would that affect your ability to be fair and impartial?” -- require reversal when considered alone or in combination with the bad acts evidence. To begin with, the question was not in and of itself improper. The prosecutor stated that the basis for the question was that the defendant and the victim had maintained a relationship following the alleged incident. Although the prosecutor did not plan to put evidence in on this point, she expected this to come out at trial, which was not unreasonable given her proffer that the defendant had been arrested at the victim's house. Given this, it was within the judge's discretion to ask the prospective jurors a question that would root out bias against domestic violence victims who returned to the relationship. In any event, any error was harmless as all the jurors asserted they could remain fair and impartial in the face of such evidence.

The defendant claims that the voir dire question amplified the prejudice caused by the prior bad acts testimony. Specifically, he claims that, because the evidence at trial did not in fact disclose a relationship between the defendant and the victim following the incident, the jury could only have inferred that the voir dire question referred to the prior bad acts testified to at trial, thereby confirming that they occurred. But we are not persuaded that the jury were focused on a connection between one of many questions they were asked during voir dire and three isolated statements, two of which were stricken, made by witnesses days later. There was no substantial risk of a miscarriage of justice.

Judgment affirmed.

FOOTNOTES

2.   The jury also acquitted the defendant of three more serious assaultive charges involving the same alleged victim on the same date: assault and battery by means of a dangerous weapon (as a habitual criminal), assault and battery causing serious bodily injury, and assault by means of a dangerous weapon.

2.   After defense counsel's objection, the judge stated, “Why don't we try to focus not so much on what was said but what you could see about her. Is that what you're looking for?” The prosecutor responded, “Yes,” and the judge concluded, “All right.” The examination then continued. Later, the judge allowed the neighbor to testify, under the excited utterance exception to the hearsay rule, that the victim told her she had just been in a fight with the defendant. (The defendant does not challenge the excited utterance ruling on appeal.) The neighbor did not mention an earlier fight in this testimony.