Opinion
20-P-788
10-12-2021
COMMONWEALTH v. CORY BONUGLI, JR.
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
After a jury trial, the defendant was convicted of violating an abuse prevention order. The conviction stemmed from the victim's observations of the defendant driving by her home, despite an abuse prevention order that was in place requiring him to stay one hundred yards away. On appeal the defendant argues that the trial judge erroneously sustained three objections made by the prosecutor during defense counsel's examination of the witnesses.
The defendant first argues that the judge improperly limited defense counsel's cross-examination of the investigating officer. After establishing that the officer had spoken to the victim's fiance as part of the investigation, defense counsel asked, "And what did he tell you?" The prosecutor objected, and the judge sustained the objection. This was not an abuse of discretion as the question appeared on its face to call for a hearsay response. Although the defendant now contends that the purpose of the question "was to show [the fiance's] demeanor," he did not offer this explanation at trial, and so we do not consider it. "Where the materiality of the evidence is unclear, the record must disclose the cross-examiner's reason for seeking an answer to the excluded question. ..." Commonwealth v. Cheek, 374 Mass. 613, 615 (1978), quoting Commonwealth v. Caine, 366 Mass. 366, 370 n.4 (1974). Here, defense counsel simply moved on to his next question without making a proffer as to why the witness's answer would be admissible. The record therefore does not reveal any abuse of discretion by the judge. See Cheek, supra, quoting Pires v. Commonwealth, 373 Mass. 829, 838 n.5 (1977) ("consideration of the alleged error in excluding the question would defeat 'an important policy which requires parties to give sufficient notice so that the trial judge may reconsider his or her ruling'"); Caine, supra at 370 ("In failing to demonstrate on the record the particular relevance of the line of questioning sought to be pursued, the defendant is unable to carry his burden of showing abuse of discretion").
The defendant's next argument fails for the same reasons. During defense counsel's direct examination of the defendant, defense counsel asked whether the victim's fiance had threatened the defendant the day before the incident in question. When the defendant responded affirmatively, defense counsel asked, "What did he say?" The judge sustained the prosecutor's objection, and defense counsel again failed to explain why the answer would be admissible for a nonhearsay purpose. The defendant's claim on appeal that the answer would have shown "the motivation of the [victim] to lie" was not raised to the judge and thus cannot be a basis for reversal. See Cheek, 374 Mass. at 615; Caine, 366 Mass. at 370.
The defendant's last argument concerns the following question asked by defense counsel to the defendant on direct examination: "When you have your children, what do you do?" As the relevance of this question was unclear, the judge did not abuse her discretion in sustaining the prosecutor's objection. While the defendant now appears to argue that the question was relevant to the victim's credibility, once again, he made no such claim at trial, nor did he proffer any other reason why the judge should reconsider her ruling. See Cheek, 374 Mass. at 615; Caine, 366 Mass. at 370.
The defendant and the victim have three children together.
In addition, not only has the defendant failed to demonstrate an abuse of discretion, he has not shown that he was prejudiced by the exclusion of the testimony. The judge did not preclude defense counsel from inquiring into the victim's purported bias. See Cheek, 374 Mass. at 615 (question potentially relevant to witness's bias properly excluded, where judge did not prohibit inquiry into bias altogether). "Defense counsel could have pursued the point, but he chose not to." Id. Thus, contrary to the defendant's contention, the judge's rulings did not impair the defendant's right to present evidence in his own defense.
Judgment affirmed.
The panelists are listed in order of seniority.