37 N.E.3d 1114
Mass. App. Ct.2015Background
- Defendant and Rosa Cruz dated ~1 month; after a Narcotics Anonymous meeting, defendant yelled threats and Cruz later gave two police statements the same night — first omitting a push, second stating he pushed her.
- At trial Cruz initially testified she could not recall if the defendant touched her, then after the prosecutor refreshed her memory with her second police statement she testified he pushed her.
- Before trial defense counsel had a pretrial conversation with Cruz in which Cruz denied any physical contact; defense sought to impeach Cruz with that statement on recross-examination.
- The prosecutor objected as hearsay; the trial judge sustained the objection and barred impeachment question; defense counsel did not further object or make a detailed offer of proof at that time.
- Jury acquitted on assault and battery but convicted of lesser included assault and of threatening to commit a crime; defendant appealed arguing erroneous exclusion of impeachment evidence and preserved error.
- Majority (Carhart, J.) reverses, holding exclusion prejudiced defendant where case turned on single witness’s credibility; dissent (Meade, J.) concurs error but contends error not preserved and was not prejudicial or a miscarriage of justice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defense preserved the confrontation/impeachment claim for appellate review | Commonwealth: defense failed to properly object or make formal offer of proof; review should be for substantial risk of miscarriage | Defendant: counsel informed judge proffer was for impeachment and satisfied Rule 22; review for prejudicial error | Majority: preserved under Rule 22; review for prejudicial error; dissent: not preserved and should be reviewed for substantial risk of miscarriage |
| Whether trial judge erred in excluding prior inconsistent statement as impeachment evidence | Commonwealth: exclusion harmless or cumulative; judge could limit inquiry on threat count | Defendant: exclusion infringed Sixth Amendment confrontation/cross-examination rights because credibility was sole issue in one-witness trial | Majority: error; exclusion deprived defendant of critical impeachment and required reversal of convictions; dissent: error but cumulative and not prejudicial so no new trial |
Key Cases Cited
- Olden v. Kentucky, 488 U.S. 227 (1988) (Confrontation clause protects right to cross-examination)
- Davis v. Alaska, 415 U.S. 308 (1974) (cross-examination is principal means to test witness credibility)
- Kotteakos v. United States, 328 U.S. 750 (1946) (standard for assessing whether error had substantial influence on jury)
- Commonwealth v. Parent, 465 Mass. 395 (2013) (exclusion of prior inconsistent statement can require reversal where victim credibility is sole issue)
- Commonwealth v. Polk, 462 Mass. 23 (2012) (evidentiary rulings affecting victim credibility may assume constitutional dimension)
- Commonwealth v. Jewett, 392 Mass. 558 (1984) (standards for offer of proof and preservation when judge is put on notice)
- Commonwealth v. Donnelly, 33 Mass. App. Ct. 189 (1992) (no discretion to preclude prior inconsistent statements that relate to main issue)