Commonwealth v. Wray, 14–P–368.

• Court: Appeals Court of Massachusetts
• Writing for the Court: CARHART, J.
• Citation: 37 N.E.3d 1114,88 Mass.App.Ct. 403
• Parties: COMMONWEALTH v. Germaine WRAY.
• Docket Number: No. 14–P–368.,14–P–368.
• Decision Date: 28 September 2015

88 Mass.App.Ct. 403
37 N.E.3d 1114

COMMONWEALTH
v.
Germaine WRAY.

No. 14–P–368.

Appeals Court of Massachusetts, Hampden.

Argued April 1, 2015.
Decided Sept. 28, 2015.

37 N.E.3d 1115

Peter J. Brewer, Great Barrington, for the defendant.

Alyson C. Yorlano, Assistant District Attorney, for the Commonwealth.

Present: VUONO, MEADE, & CARHART, JJ.

Opinion

CARHART, J.

The defendant appeals from his convictions of assault and threating to commit a crime.¹ He claims that the judge erred by barring defense counsel from eliciting from the alleged victim, Rosa Cruz, the sole witness in the case, whether she had made certain statements to defense counsel that were inconsistent with her testimony at trial. We reverse.

Background. The jury could have found the following facts based on the evidence presented at trial. The defendant and Cruz had

been in a dating relationship for about one month, when, on November 19, 2012, they both attended a Narcotics Anonymous meeting in West Springfield. Before the meeting began, the defendant saw Cruz hug another man. The defendant became upset, started yelling at Cruz, and said that he was going to come back and “fuck [her] up.” That night, Cruz was interviewed by and gave two statements to the police. In her first statement, Cruz did not say that the defendant pushed her. In her second statement, Cruz stated that the defendant did, in fact, push her.² At trial, Cruz testified that the defendant tried to push her, but said several times that she could not remember if he actually touched her. Subsequently, the prosecutor

37 N.E.3d 1116

refreshed her memory with the second statement that she gave to the police on the night of the incident. The following exchange ensued:

Prosecutor : “Did he make physical contact with you?”

Cruz : “He pushed me, yeah, but it wasn't a push that I fell.”

Prosecutor : “Okay. But he touched you?”

Cruz : “Yes.”

On the day of trial, before it began, defense counsel spoke with Cruz about the incident that formed the basis for the charge of assault and battery.³ Specifically, defense counsel asked Cruz whether the defendant had pushed her. Cruz stated that the defendant did not touch her on November 19, 2012, and that he did not make a pushing or threatening motion towards her. On recross-examination, defense counsel attempted to ask Cruz about these statements. The Commonwealth objected, after which the following discussion took place at sidebar:

Prosecutor : “This is definitely hearsay.”

The court: “Yes, it's hearsay.”

Defense counsel: “It's used to impeach her.”

The court: “It's hearsay.”

Prosecutor : “I mean if [defense counsel] wants to take the stand and I can cross-examine her.”

The court: “It's hearsay. It's not ... I mean (inaudible) as it's phrased.”

The judge sustained the Commonwealth's objection and instructed the jury to disregard the question.

In her closing argument, defense counsel argued that Cruz's “testimony [was] not really reliable” because she did not state that the defendant touched her until the prosecutor refreshed her recollection with one of her statements to police. The Commonwealth argued in its closing argument that Cruz's reliability was the central issue in the trial.⁴ As noted, the jury found the defendant not guilty of assault and battery, but guilty of the lesser included offense of assault and of threatening to commit a crime.

Discussion. The defendant argues that a reversal is required because the judge improperly prevented defense counsel from eliciting impeachment evidence from Cruz on recross-examination. The Commonwealth concedes that the judge erred, but asserts that the error does not warrant a new trial. We begin by addressing the appropriate standard of review.

The defendant claims that the appropriate standard of review is prejudicial error because defense counsel preserved the issue by informing the judge, at sidebar, that she intended to offer the statement for impeachment purposes. The Commonwealth argues that because defense counsel failed to take exception to the judge's adverse ruling, our review is for a substantial risk of a miscarriage of justice. We disagree. The “archaic” rule requiring an exception to preserve an issue for appellate review was abolished by the adoption of rule 22 of the Massachusetts Rules of Criminal Procedure, 378 Mass. 892 (1979). Rule 22 provides that “[e]xceptions to rulings or orders of the court are [now] unnecessary and ... it is [now] sufficient that a party, at the time the ruling or

37 N.E.3d 1117

order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court....” Here, defense counsel stated at sidebar that she wanted to introduce the prior inconsistent statement at trial for the purpose of impeaching the witness's testimony. See Commonwealth v. Hollie, 47 Mass.App.Ct. 538, 541 n. 3, 714 N.E.2d 827 (1999) (“[T]rial counsel need not achieve perfection in identifying every impropriety ... so long as the objection alerts the judge to the grounds on which trial counsel objected”). Although

defense counsel did not specifically object to the judge's adverse ruling, the fact that she, in effect, made an offer of proof as to the statement's admissibility put the judge on notice of the purpose of the proffered statement and satisfied the requirements of rule 22.⁵ See Commonwealth v. Jewett, 392 Mass. 558, 562, 467 N.E.2d 155 (1984), quoting from Commonwealth v. Graziano, 368 Mass. 325, 330, 331 N.E.2d 808 (1975) (counsel is “not required to make further efforts ‘in the face of the judge's unequivocal adverse ruling’ ”); Commonwealth v. Bonds, 445 Mass. 821, 828, 840 N.E.2d 939 (2006) (“We have consistently interpreted [rule 22 ] to preserve appellate rights only when an objection is made in a form or context that reveals the objection's basis”). See also Commonwealth v. Ayala, 29 Mass.App.Ct. 592, 598 n. 8, 563 N.E.2d 249 (1990). “To rule otherwise would exalt form over substance.” Commonwealth v. Morin, 52 Mass.App.Ct. 780, 783 n. 3, 756 N.E.2d 37 (2001), quoting from Commonwealth v. Spear, 43 Mass.App.Ct. 583, 589 n. 8, 686 N.E.2d 1037 (1997). Accordingly, we review for prejudicial error. Commonwealth v. Parent, 465 Mass. 395, 399, 989 N.E.2d 426 (2013).

“An error is nonprejudicial only ‘[i]f ... the conviction is sure that the error did not influence the jury, or had but very slight effect....’ ” Commonwealth v. Flebotte, 417 Mass. 348, 353, 630 N.E.2d 265 (1994), quoting from Commonwealth v. Peruzzi, 15 Mass.App.Ct. 437, 445, 446 N.E.2d 117 (1983). “The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error.” Commonwealth v. Peruzzi, supra at 445–446, 446 N.E.2d 117, quoting from Kotteakos v. United States, 328 U.S. 750, 764–765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Rather, it is “whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.”

Id. at 446, 446 N.E.2d 117, quoting from Commonwealth v. Kotteakos, supra at 765, 66 S.Ct. 1239.

First, we reject the Commonwealth's argument that although the judge erred in ruling that defense counsel could not present

37 N.E.3d 1118

the impeachment evidence as it related to the assault and battery charge, the judge had the discretion to prevent such inquiry as it related to the threat to commit a crime charge because it did not affect the elements of that offense. This argument misses the point. The issue is the extent to which the admission of an inconsistent statement would have affected the victim's credibility. See Commonwealth v. Polk, 462 Mass. 23, 33, 965 N.E.2d 815 (2012) (where proffered evidence goes to victim's credibility in case that rests “almost entirely” on victim's credibility, “a judge's evidentiary decision assumes a constitutional dimension”). Cf. Commonwealth v. Sherry, 386 Mass. 682, 693, 437 N.E.2d 224 (1982) (no abuse of discretion where excluded statement “was offered only to impeach [the victim's] credibility generally and not as to her description of the events in issue”). Here, because Cruz's testimony was the only evidence presented for both the assault and battery and the threat to commit a crime charges, her “credibility was the sole issue at trial” and thus was material. See Commonwealth v. Parent, supra at 401–402, 989 N.E.2d 426 (exclusion of prior inconsistent statement required reversal of one of three charges because that charge was based solely on victim's testimony).⁶

The Commonwealth also contends that in both instances, the judge's limitation on defense counsel's ability to confront Cruz with her inconsistent statement was not reversible error because the statement was cumulative of other impeachment evidence presented at trial, and defense counsel adequately undermined Cruz's credibility on...