Opinion
No. 11–P–339.
2012-10-29
COMMONWEALTH v. Roque PENA.
By the Court (CYPHER, KATZMANN & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from convictions on one count of assault and battery and two counts of simple assault. He argues that the judge abused his discretion by limiting cross-examination of the victim. We affirm.
The victim's next door neighbor testified at trial that he was awakened in the middle of the night to the sound of someone pounding on his door and screaming hysterically. He opened the door to find the victim's eight year old son, “covered with blood,” screaming for someone to call 911. After calling 911, the neighbor looked outside and saw the victim sitting at the bottom of the stairs, also “covered in a lot of blood.” The victim testified that the defendant had forced his way into her house, attempted to rape her, and then punched and stabbed her repeatedly when she resisted. The defendant testified that the victim had attacked him while under the influence of cocaine, and that her injuries were incurred in the ensuing struggle. To impeach the victim's credibility, the defendant sought to introduce evidence of the victim's past dealings with the Department of Children and Families (DCF). This evidence served to suggest to the jury that the victim was lying about the attack out of fear of losing custody of her son. The judge permitted a lengthy cross-examination of the victim totalling about sixty pages of transcript. That cross-examination covered topics including the victim's drug use, her criminal history, her overt lies to DCF employees, and DCF's removal of the victim's son from her custody for nine months in 2004, and for six months following the underlying assault in 2007. However, he did not permit the defendant to explore all of the details of the victim's prior DCF involvement, and did not admit her DCF records into evidence.
“While a judge may not bar all inquiry (emphasis added) into the possibility of bias, a judge nevertheless has discretion to determine whether the evidence demonstrates bias and to limit cross-examination concerning possible bias when further questioning would be redundant.” Commonwealth v. Mora, 82 Mass.App.Ct. 575, 579 (2012) (quotations and citations omitted). The judge here did not abuse his considerable discretion when he limited cross-examination of the victim. The defendant had ample opportunity to lay out the victim's motive to lie about the attack, and additional cross-examination would have been largely collateral or cumulative. Moreover, we note that the defendant was acquitted of assault and battery causing serious bodily injury, and was convicted only of the lesser included offense of simple assault on the counts for assault with intent to murder and assault with intent to rape. It therefore appears that the cross-examination of the victim succeeded in making the jury disbelieve the victim's version of events. The cross-examination permitted by the judge was sufficient to demonstrate the victim's motive to lie; the defendant was entitled to no more.
Judgments affirmed.