22 Mass. App. Ct. 683 | Mass. App. Ct. | 1986
On July 11, 1983, two complaints issued from the District Court of Newton against the defendant, charging
In view of the nature of the issues raised by the defendant, it is not necessary for us to outline in great detail the evidence before the jury. We summarize the pertinent evidence. On July 9, 1983, the victims, Kester and Hardy, were present at a party in Newton. The defendant and four of his friends showed up, uninvited. They were asked to leave and did so but later returned. When asked again to leave, the defendant punched Kester in the face. Kester’s wife, seeing the defendant strike her husband, grabbed an empty wine bottle and hit the defendant on the head with it. Later, the defendant punched Hardy and also kicked him with his right foot. The police arrived and arrested the defendant.
1. Exclusion of evidence of possible bias. At trial, the defendant attempted to introduce evidence that, after his arrest, he made applications for criminal complaints against two witnesses» for the Commonwealth (Hardy, and Kester’s wife) for assault and battery with a dangerous weapon, i.e., a bottle. The judge excluded the evidence. The defendant argues that the evidence of the pending applications for criminal complaints was probative on the issue of bias or motive to lie on the part of those prosecution witnesses.
“A defendant has the right to bring to the jury’s attention any ‘circumstance which may materially affect’ the testimony of an adverse witness which might lead the jury to find that the witness is under an ‘influence to prevaricate’ ” (emphasis
Unlike the situation in Ahearn, in the instant case, given the context in which the evidence arose (not on cross-examination of the prosecution witnesses but on direct examination of the defendant and an attorney), it would not have been apparent to the judge that the questions were relevant on the issue of bias or motive to lie on the part of the prosecution witnesses. See Commonwealth v. Cheek, 374 Mass. 613, 615 (1978). It was not error, therefore, for the judge to exclude the evidence.
The defendant also contends that the judge improperly excluded evidence of bias on the part of certain police witnesses. In 1981 the defendant brought a civil action against certain members of the Newton police department in connection with an incident that had occurred in 1979. That action was eventually settled. Before trial of the instant case, the Commonwealth filed a motion in limine to preclude the defendant from referring to the civil action and the incident that gave rise to the action. The judge ruled that before any police officer testified the defendant could conduct a short hearing (at the bench) to establish whether the police officer was involved in the incident
It is clear from the record that at the time the judge made his ruling he believed that the Commonwealth would call as witnesses police officers who had been involved in the 1979 incident and the resulting civil action and that those officers would give testimony damaging to the defendant. However, that was not what occurred at trial. Only two of the several Commonwealth witnesses were police officers. One officer was the investigating and arresting officer. The other officer was the field supervisor at the scene who ordered the defendant’s arrest. The defendant did not attempt to impeach the credibility of either officer by showing that they were biased. Apparently neither of them had been involved in the 1979 incident or in the resulting civil action.
During the presentation of the defendant’s case, defense counsel called as witnesses two police officers, Salemme and Devaney. The judge was informed by defense counsel that both had been involved in the 1979 incident and had been named as defendants in the civil action. Before the officers testified, the judge informed defense counsel that he would be allowed to explore possible bias of the testifying officer only if the officer testified that he was involved in the actual arrest or the decision to arrest the defendant on the instant charges.
2. Comments of judge concerning defense counsel. The defendant claims that the judge made several remarks in open court concerning defense counsel and that these comments denied him a fair trial.
It is obvious from reading the record that an aura of hostility of unusual intensity between the prosecutor and defense counsel was present during the trial.
Judgments affirmed.
The clerk magistrate postponed the hearing on the applications until after the conclusion of the instant trial.
Neither of the police officers had actually witnessed the assaults allegedly committed by the defendant.
There was evidence that when the defendant and his friends were at the party the first time, they were asked to leave. They refused, and the police were called. When the police arrived, the defendant and his friends were driving away from the party. After talking to the party hosts, the police left and stopped the automobile in which the defendant was riding. After
The defendant in his testimony did not single out Devaney as a major participant in the events surrounding his arrest.
The trial prosecutor is not appellate counsel.