Com. v. Nicholas

• Decision Date: 22 February 1983
• Citation: 445 N.E.2d 634,15 Mass.App.Ct. 354
• Parties: COMMONWEALTH v. Edward J. NICHOLAS.
• Court: Appeals Court of Massachusetts

Page 634

445 N.E.2d 634

15 Mass.App.Ct. 354

COMMONWEALTH v. Edward J. NICHOLAS.

Appeals Court of Massachusetts Middlesex.

Argued Dec. 15, 1982.

Decided Feb. 22, 1983.

Richard Zorza, Brookline, for defendant.

Katherine E. McMahon, Brighton, (James W. Sahakian, Asst. Dist. Atty., with her), for Commonwealth.

Before HALE, C.J., and CUTTER and WARNER, JJ.

HALE, Chief Judge.

The defendant was tried before a jury on two indictments charging him with rape of a child (G.L. c. 265, § 23). He was convicted on only so much of each indictment as charged indecent assault and battery on a child (G.L. c. 265, § 13B). He has appealed from the ensuing judgments. We reverse. A recitation of the facts beyond those mentioned in the discussion below is unnecessary.

1. The defendant alleges that it was error for the trial judge to preclude him from cross-examining one of the victims, age nine at the time of trial, as to whether her mother had improperly coached her on how to testify. By so doing, he asserts, the judge prevented the defense from developing its theory that the child was testifying on the basis of what had been suggested to her by her mother, rather than on what had in fact occurred. The trial judge excluded the inquiry because he felt there had been no showing that the mother was prejudiced against the defendant. Such a showing was not required as a basis for the cross-examination desired by the defendant (see Alford v. United States, 282 U.S. 687, 692, 51 S.Ct. 218, 219, 75 L.Ed. 624 [1931] ). In ruling as he did, the judge must have overlooked the fact that the mother admitted to swearing out a false affidavit to support a complaint against the defendant when she was told by her children of the defendant's activities, and that she felt strongly enough to have him prosecuted. The judge could also have inferred that any mother would be hostile to a person she believed had carnally abused her children.

While a judge has discretion to limit the scope of cross-examination, the judge here "excluded the total inquiry by his several rulings." Commonwealth v. Ahearn, 370 Mass. 283, 287, 346 N.E.2d 907 (1976). "A fair and full cross-examination to develop facts in issue or relevant to the issue is a matter of absolute right and is not a mere privilege to be exercised at the sound discretion of the presiding judge, and the denial of the right is prejudicial error." Commonwealth v. Johnson, 365 Mass. 534, 543, 313 N.E.2d 571 (1974), quoting from Gossman v. Rosenberg, 237 Mass. 122, 124, 129 N.E. 424 (1921). The defendant was not required to pursue his line of questioning with the other victim, who was eight at the time of trial, in the face of the judge's unequivocal adverse ruling. Commonwealth v. Graziano, 368 Mass. 325, 330, 331 N.E.2d 808 (1975). In this case, the defendant's only available tool to create doubt in the minds of the jury was his ability to impeach by cross-examination the testimony of the young girls. The trial judge's total exclusion of a relevant line of inquiry was error requiring reversal. Because the remaining assignments of error are likely to arise in a new trial, we discuss them below.

2. The trial judge further limited cross-examination of one of the victims as to her mother's live-in boyfriend at the time of trial. The defendant asserts this was error. We disagree. The defendant was allowed to elicit evidence as to the presence of a boyfriend of the mother during the period when the assaults were occurring, but her boyfriend at the time of trial did not fall into this category. "How far the cross-examination of a witness may be relevant to the issue on...