Opinion
No. 11–P–2132.
2012-11-28
COMMONWEALTH v. Richard C. BENT.
By the Court (KANTROWITZ, BERRY & GRAINGER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Richard C. Bent, was convicted of open and gross lewdness, G.L.c. 272, § 16, and breaking and entering in the daytime with intent to commit a misdemeanor. On appeal, he claims that (1) the Commonwealth did not meet its burden of proving the defendant's actions were intentional and done openly, (2) the trial judge erred in excluding evidence of bias and motive to lie, and (3) there was a substantial risk of a miscarriage of justice because the judge did not define “recklessly” in the jury instructions. We affirm.
The defendant was originally charged with breaking and entering with intent to commit a felony (larceny), the theory being that he was sexually fixated on the victim (as evidenced by his twenty-five to thirty instances of audible masturbation when he believed she was within earshot) and was going to steal property in furtherance of his fixation.
Background. The victim heard her apartment door unlock and open; checking the noise, she saw that the defendant at her doorway was nude from the waist up. Her view of him was partially blocked; she could not see him below the waist. He departed hurriedly. At that point, she noticed that in fact he was totally nude; she saw his buttocks. This exposure resulted in her becoming “very upset.” Open and gross conduct. The second and third elements of open and gross lewdness require that the defendant's actions were intentional and done so openly. Openly means that he either “intended public exposure, or he ... recklessly disregarded a substantial risk of public exposure.” Commonwealth v. Quinn, 439 Mass. 492, 501 (2003).
The Commonwealth's theory was not that the defendant intended public exposure, but rather that his conduct was reckless.
Here, there was evidence that the defendant left his apartment and crossed the hall to enter the victim's apartment. The victim heard her door unlock and open. Officer Steve Allen testified that the defendant claimed that he went over to the victim's apartment to let in the cat. Later, at trial, the defendant claimed that he went over to ask the victim to close her door because her chopping some vegetables was disturbing his sleep. On these facts, the jury could readily have inferred that the defendant intended the act or committed the act recklessly.
Bias and motive to lie. “The defendant correctly asserts that a criminal defendant has a constitutional right to cross-examine a witness to show bias.... However, a judge also has broad discretion to control the scope and extent of cross-examination.” Commonwealth v. Gittens, 55 Mass.App.Ct. 148, 156 (2002). Moreover, “[a] defendant who seeks to pursue a subject in an attempt to demonstrate bias must make a plausible showing that the circumstances existed on which the alleged bias is based.” Commonwealth v. Tam Bui, 419 Mass. 392, 401 (1995).
Here, at a pretrial hearing, the judge asked the defendant whether there was evidence that the victim had approached the landlord about breaking the lease, the landlord had refused and, therefore, the victim had “concocted” the story. The defendant acknowledged that he would not provide evidence that the victim, prior to the incident, had approached the landlord about breaking the lease. As the defendant has not made a plausible showing that the circumstances existed upon which the alleged bias is based, the argument fails.
The judge also acted within his discretion in ruling that the proposed evidence was not relevant to any issue in the case, including bias. See Mass. G. Evid. § 402 (2012).
Jury instructions. Ordinarily, judges should define “recklessly” when used in jury instructions to avoid a problem of possibly confusing the jury or obscuring its meaning. See Commonwealth v. Kessler, 442 Mass. 770, 777 (2004). In Kessler, the defendant was charged with open and gross lewdness and lascivious behavior when children, from outside, observed the defendant masturbating inside his mother's house. Id. at 771–772. The Supreme Judicial Court determined that there was a risk of confusing the jury as to the defendant's intentions. Id. at 777–778.
Here, the facts are significantly different. Indeed, there was no objection to the jury instructions. There was no risk of confusing the jury about the defendant's actions. The defendant left his apartment and encountered the victim at the door of her apartment, all the while totally naked. When the defendant left his apartment naked, he was inherently acting with a reckless disregard for the substantial risk of public exposure.
Conclusion. For these reasons as well as for substantially those in the brief of the Commonwealth, we affirm.
Judgments affirmed.