This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Marcos Santos, appeals from his conviction of violating an abuse prevention order. The defendant argues that his constitutional rights to confront witnesses and present evidence regarding their bias, prejudice, and motives to lie was restricted or, alternatively, that the abuse prevention order was unconstitutionally vague. We affirm.
Restriction of cross-examination and presentation of other evidence.
The defendant argues that the judge impermissibly restricted his right to cross-examine two of the Commonwealth's witnesses, Martin and Gallup, as well as his right to present evidence concerning those witnesses' bias, prejudice, or motive to lie.
" A defendant has a constitutional right to examine a witness as to bias. Nevertheless, a judge may limit the scope of cross-examination as long as he or she does not completely bar inquiry into a relevant subject. Moreover, if a witness's potential bias is made apparent to the jury, the judge may exclude other evidence on the subject as cumulative."
Commonwealth v. Williams, 456 Mass. 857, 873, 926 N.E.2d 1162 (2010) (citations omitted).
The judge sustained objections to questions concerning how one of the prosecution witnesses, the victim Martin, felt after she learned about her employee's, Williams's, written statement to defense counsel. Defense counsel was allowed to ask Martin if she was angry with Williams after she learned about the statement. Martin responded that she was not angry. Defense counsel was also allowed to question Martin about the actions she took to " correct" a police report detailing the incident after she learned of Williams's statement to defense counsel. The judge did not " bar all inquiry into the subject." Commonwealth v. Avalos, 454 Mass. 1, 6-7, 906 N.E.2d 987 (2009) (citation omitted). The defendant has not shown that the sustained objections were an abuse of discretion. See id. at 7.
In contrast, the limitation on the cross-examination of Gallup, one of the Commonwealth's other witnesses, was a violation of the defendant's right to cross-examine. Defense counsel attempted to ask Gallup, who was also supervised by Martin and who testified that she observed the defendant walk by the kiosk on the day at issue, about a text message Gallup sent to Williams. The judge sustained the Commonwealth's objection to defense counsel's question concerning the text message and stated that it was " far too removed." The judge denied defense counsel's request to discuss the issue at sidebar and instructed defense counsel to move on. The defendant had a right to cross-examine this witness about the text message. It was sent during a proceeding related to this case concerning Williams's behavior in the court room. It was not too speculative that questions concerning the text message might suggest Gallup had a bias. " When a possibility of bias exists, . . . even if remote, the evidence is for the jury to hear and evaluate." Commonwealth v. Henson, 394 Mass. 584, 587, 476 N.E.2d 947 (1985).
However, the error was harmless beyond a reasonable doubt. See Commonwealth v. Miles, 420 Mass. 67, 73, 648 N.E.2d 719 (1995), quoting from Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (denial of opportunity to cross-examine is not reversible error " if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt" ). " We consider several factors to determine whether the error was harmless: 'the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.'" Commonwealth v. Vardinski, 438 Mass. 444, 452, 780 N.E.2d 1278 (2003), quoting from Commonwealth v. DiBenedetto, 414 Mass. 37, 40, 605 N.E.2d 811 (1992), S. C., 427 Mass. 414, 693 N.E.2d 1007 (1998).
Here, the judge later allowed Williams to testify about the text message, including what Williams recalled the text message said. As a result, the jury had information that contradicted Gallup's testimony that she only sent work-related text messages to Williams and they could evaluate whether the content of the text message suggested Gallup was biased against the defendant. In addition, a defense witness's testimony corroborated the portions of Gallup's testimony that were material to convicting the defendant of the violation of the restraining order by walking past the Piercing Pagoda, Martin's workplace.
The defendant further argues that the judge impermissibly excluded testimony from a proposed defense witness, McClintock. Defense counsel proffered that he expected McClintock to testify that when the defendant moved out of the home he shared with Martin in 2010, Martin was upset and angry he was leaving, and " said . . . something to the effect that . . . she'll see [the defendant] in jail or see to it that he goes to jail." We assume it was error to exclude the testimony of McClintock completely. However, this error was also harmless beyond a reasonable doubt. As is noted above, all three witnesses, including the defendant's witness, agree that the defendant did walk by the Piercing Pagoda on the date at issue. This was the only material fact elicited from Martin on the count of violating the abuse prevention order on which the defendant was convicted. In addition, the possibility that Martin had ...