Commonwealth v. King

• Decision Date: 11 May 2023
• Docket Number: 22-P-894
• Parties: COMMONWEALTH v. CINDY M. KING
• Court: Appeals Court of Massachusetts

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COMMONWEALTH v. CINDY M. KING

No. 22-P-894

Appeals Court of Massachusetts

May 11, 2023

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Cindy M. King, was convicted after a District Court jury trial of assault and battery on a family or household member, G. L. c. 265, § 13M (a), and four counts of witness intimidation, G. L. c. 268, § 13B. The defendant now appeals from her convictions as well as the denial of her motion for a new trial. We conclude that the judge acted within his discretion in excluding certain evidence of police bias where defense counsel failed to show how police disciplinary proceedings were particularly connected to the defendant and where there was other evidence of police bias before the jury.

We further conclude that defense counsel's failure to make an offer of proof in this regard, failure to present additional evidence of police bias, and failure to impeach the victim with video footage from the defendant's Ring Doorbell^[1] did not constitute ineffective assistance of counsel. Accordingly, we affirm.

1. Exclusion of evidence of police bias.

"A criminal defendant has the constitutional right to cross-examine a prosecution witness to show that the witness is biased." Commonwealth v. Johnson, 431 Mass. 535, 538 (2000). This right, however, "is not absolute." Commonwealth v. Walker, 438 Mass. 246, 253 (2002). "Although a trial judge has discretion to limit cross-examination when necessary, 'he or she has no discretion to prohibit all inquiry into [a subject that could show bias or prejudice on the part of the witness].'" Commonwealth v. Magdalenski, 471 Mass. 1019, 1019 (2015), quoting Commonwealth v. Tam Bui, 419 Mass. 392, 400, cert. denied, 516 U.S. 861 (1995). "Determining whether the evidence demonstrates bias . . . falls within the discretion of the trial judge." Commonwealth v. Jones, 478 Mass. 65, 73 (2017), quoting Commonwealth v. LaVelle, 414 Mass. 146, 153 (1993).

On appeal, "[w]e review a judge's evidentiary rulings for an abuse of discretion." Commonwealth v. Andre, 484 Mass. 403, 414 (2020). "We will conclude that there has been an abuse of discretion only if the judge has 'made "a clear error of judgment in weighing" the factors relevant to the decision, . . . such that the decision falls outside the range of reasonable alternatives.'" Commonwealth v. Hammond, 477 Mass. 499, 505 (2017), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Here, the judge acted within his discretion in excluding certain evidence of police bias based on the information provided to him. See Commonwealth v. Meas, 467 Mass. 434, 450, cert. denied, 574 U.S. 858 (2014) ("the judge did not abuse his discretion in precluding inquiry concerning possible bias"). On cross-examination, defense counsel asked Officer David Phillips and Lieutenant Mark Giancotti whether they had ever been subject to disciplinary proceedings. Before either witness could answer, the judge ruled sua sponte, "That's excluded." After the judge prevented Lieutenant Giancotti from answering, he allowed defense counsel to be heard at sidebar.^[2] Defense counsel represented that the witness would testify that "[h]e was subject to disciplinary actions after a public hearing, and he was suspended for five days for untruthfulness." The judge ruled that he was excluding inquiry into Lieutenant Giancotti's disciplinary record to avoid getting into "what a board may have found about him or may not have found" but allowed defense counsel to elicit testimony regarding animosity between the police and the Board of Selectmen (board), of which the defendant was a member at the time of the incident.

At no point during their testimony did defense counsel explain why or how Officer Phillips's and Lieutenant Giancotti's involvement in disciplinary proceedings were connected to the defendant. Cf. Commonwealth v. Drew, 447 Mass. 635, 648 (2006), cert. denied, 550 U.S. 943 (2007) ("Counsel made an offer of proof as to what the witness would say; and he stated his reasons for offering the testimony"). Without an offer of proof, the judge would have no reason to know of any potential bias harbored against the defendant. See Commonwealth v. Cassidy, 470 Mass. 201, 212-213 (2014) (no abuse of discretion in preventing "the defendant from asking Trooper Cherven whether Kelly Croce had told police that somebody named Scotty had warned her that something might happen. There was no proffer that Scotty's statement had anything to do with the victim's death" [footnote omitted]).

Moreover, the judge did not "'bar all inquiry' . . . into the possibility of bias." Commonwealth v. Mora, 82 Mass.App.Ct. 575, 579-580 (2012), quoting Commonwealth v. Avalos, 454 Mass. 1, 7 (2009) (no abuse of discretion in limiting cross examination where defense counsel was permitted to elicit testimony concerning possible bias). At trial, Lieutenant Giancotti testified that "[t]here were some issues" between the police and the board, and Officer Michael Marchand testified that there was a fair amount of animosity between the police and the board. Later, the defendant testified that she was familiar with the police officers in the case and that she was involved in police disciplinary actions while serving on the board. Throughout trial the defendant testified to animosity between the police and the board. Given the testimony elicited at trial, "[i]t [was] apparent that the judge was not precluding 'all inquiry' into the question of bias." Commonwealth v. Ahart, 464 Mass. 437, 441 (2013), quoting Tam Bui, 419 Mass. At 400. Accordingly, the judge was within his discretion in excluding certain evidence of police bias. See Commonwealth v. Sealy, 467 Mass. 617, 624-625 (2014), quoting Avalos, 454 Mass. at 8 (no abuse of discretion where "evidence of the victim's motive to lie was 'sufficiently aired'").

2. Ineffective assistance of counsel.

We review the denial of a motion for a new trial for "a significant error of law or other abuse of discretion." Commonwealth v. Rodriguez- Nieves, 487 Mass. 171, 176 (2021), quoting Commonwealth v. Vargas, 475 Mass. 338, 355 (2016). Where, as here, "the motion judge was also the trial judge, [his] rulings are 'afforded special deference.'" Commonwealth v. Gaudette, 56 Mass. App. Ct. 494, 503 (2002), quoting Commonwealth v. Hung Tan Vo, 427 Mass. 464, 467 (1998).

"Where a motion for a new trial is based on ineffective assistance of counsel, the defendant must show that (1) the 'behavior of counsel [fell] measurably below that which might be expected from an ordinary fallible lawyer' and (2) such failing 'likely deprived the defendant of an otherwise available, substantial ground of defence.'" Commonwealth v. Tavares, 491 Mass. 362, 365 (2023), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "If a defendant challenges the 'tactical or strategic decisions,' of trial counsel, he must establish them as 'manifestly unreasonable.'" Commonwealth v. Shanley, 455 Mass. 752, 768 (2010), quoting Commonwealth v. Montanez, 410 Mass. 290, 295 (1991). In assessing whether the defendant was prejudiced, we have held that "a defendant is entitled to a new trial 'if we have a serious doubt whether the result of the trial might have been different had the error not been made.'" Commonwealth v. Millien, 474 Mass. 417, 432 (2016), quoting Commonwealth v. Azar, 435 Mass. 675, 685 (2002), S.C., 444 Mass. 72 (2005).

a. Offer of proof.

Defense counsel's failure to make an offer of proof that the defendant was involved in Officer Phillips's and Lieutenant Giancotti's disciplinary proceedings to show that they were biased against the defendant did not constitute ineffective assistance of counsel. See Commonwealth v. Frank, 433 Mass. 185, 194 (2001) (no ineffective assistance of counsel in failing to make an offer of proof where "nothing . . . would lead us to conclude that evidence concerning the defendant's alleged prior blackouts would have made a difference in the outcome"). Concerning Officer Phillips, there was no evidence in the record that he knew what happened at the board's executive session, a closed proceeding that occurred the day before the incident. Although the defendant attests that she told her attorney that she voted to initiate an investigation into Officer Phillips a day before the incident, the "motion judge was not required to credit any claims . . . in the defendant's self-serving affidavit." Commonwealth v. Gilbert, 94 Mass.App.Ct. 168, 178 (2018). See Commonwealth v. Vaughn, 471 Mass. 398, 405 (2015), quoting Commonwealth v. Rzepphiewski, 431 Mass. 48, 55 (2000) (judge may discredit "a defendant's affidavit[] even if nothing in the record directly disputes [it]").

As to Lieutenant Giancotti, trial counsel's conduct in failing to make an offer of proof fell "below that which might be expected from an ordinary fallible lawyer." Commonwealth v. Lavoie, 464 Mass. 83, 89 cert. denied, 569 U.S. 981 (2013), quoting Saferian, 366 Mass. at 96. In his affidavit, appellant counsel attested that the meeting minutes...