Opinion
No. 11–P–878.
2012-05-25
COMMONWEALTH v. Roy CRUZ.
By the Court (GRASSO, BERRY & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of filing a false report to police, violating a restraining order, and criminal harassment. He argues on appeal that the convictions should be reversed because (a) he should have been allowed to introduce additional prior inconsistent statements of the victim; and (b) the prosecutor misstated the evidence in closing argument and gave her own opinion of the victim's credibility and the defendant's guilt. We affirm.
The jury found the defendant guilty of criminal harassment as a lesser included offense of stalking while a restraining order was in effect. The jury also acquitted the defendant of a separate charge of stalking.
The defendant argues that the judge erred when she did not permit him to admit evidence of the so-called prior inconsistent statements that were the subject of his motions in limine. As to the amended motion, the three statements the judge excluded were collateral matters. They concerned previous complaints by the victim to the police of behavior that she suspected to be the work of the defendant. More specifically, the three statements concerned whether there had been inconsistencies or weakening in what the victim had told police about those previous incidents. All of the reports were made in 2005, well before the conduct charged in this case. Although a defendant has the right to cross-examine the witnesses against him, “the right of confrontation is not absolute.” Commonwealth v. Clarke, 418 Mass. 207, 212 (1994). A defendant does not have a right to impeach, discredit, or demonstrate the bias of a witness through prior inconsistent statements on collateral matters. “Extrinsic evidence to impeach a witness on a collateral matter is not admissible as of right, but only in the exercise of sound discretion by the trial judge.” Mass. G. Evid. 613(a)(4) (2011). It is well within a judge's discretion to exclude extrinsic evidence that goes only to credibility. Commonwealth v. Farley, 443 Mass. 740, 751 (2005).
We perceive no abuse of discretion here. Two of the statements were not plainly inconsistent. See Commonwealth v. Lloyd, 45 Mass.App.Ct. 931, 933–934 (1998) (judge has broad discretion to exclude prior statements that are not plainly inconsistent). All of the statements were several years removed from the charged conduct. The statements concerned only collateral matters. The defendant was permitted to explore several other examples of prior inconsistencies by the victim. In these circumstances, it is difficult to perceive what the omitted statements would have added to the case that was not otherwise placed before the jury or ably argued by defense counsel in closing. For this same reason, even were we to assume that the judge abused her discretion, we are confident that the error “did not influence the jury, or had but very slight effect.” Commonwealth v. Shea, 460 Mass. 163, 172 (2011) (citation omitted).
The victim's refusal to adopt defense counsel's questions, “[a]nd you admitted at that point that neither of the messages you were talking about were threatening in any way” and “[y]ou admitted that the messages appeared friendly and ultimately did not seem to be harassing to you,” were not plainly inconsistent with Officer O'Donnell's testimony that the victim said that “maybe [the calls] weren't as harassing as she'd intentionally thought.” Likewise, the victim's rejection of defense counsel's question, “you admitted that you could not identify the clothes he was wearing,” was not plainly inconsistent with Officer O'Donnell's statement that “we again asked her about that video, and she did in fact state that, well, maybe she couldn't really identify that as Roy Cruz because she couldn't really get a clear view of the clothes .”
The defendant also argues that during her closing the prosecutor commented on facts not in evidence and asserted her personal opinion as to the victim's credibility and the defendant's guilt. He rests this argument on two statements made during the closing: first, that the Tyngsboro police discredited the defendant's anonymous call reporting that the victim would have drugs in her car and therefore that they did not pull her over; second, that the State police stopped the victim's car because they did not have the same history and background about the relationship between the defendant and the victim as the Tyngsboro police did. The first statement was fully supported by the evidence; Officer Wagner testified that he discredited the defendant's anonymous call because it did not “add[ ] up” and made no sense, and that the police decided not to follow up after they investigated the matter. The prosecutor's closing statement was, therefore, fair commentary on the evidence. As to the second statement, even if we assume there was error, no substantial risk of a miscarriage of justice resulted from it. See Commonwealth v. Grandison, 433 Mass. 135, 141–143 (2001). It was undisputed that the defendant made an anonymous call to the State police reporting drugs in the victim's car. It was also undisputed that the State police followed up on that report, pulled the victim over on Interstate Route 495, found drugs under the driver's seat of the car, and arrested her. Whether the State police decided to follow up on the anonymous tip because they did not know the history between the parties or for some other reason was tangential to any issue in the case.
Judgments affirmed.