Opinion
21-P-114
12-13-2021
B.M. v. S.M.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, S.M., appeals from the issuance of a G. L. c. 258E harassment prevention order against her, in favor of the plaintiff, B.M., and from the denial of S.M.’s motion for reconsideration. The defendant argues: (1) the judge's failure to recuse himself, given an alleged objective appearance of partiality, requires the order to be vacated, (2) the judge committed reversable error in denying the defendant the absolute right to cross-examine T.B., (3) the denial of the defendant's motion to strike the testimony of an unsequestered witness was improper, and (4) the plaintiff failed to provide sufficient evidence of harassment, as defined by G. L. c. 258E, § 1, to warrant the issuance of the order. We affirm.
1. Recusal. The defendant claims that the judge should have recused himself where his impartiality might reasonably have been questioned. As a result, the defendant claims that the order ought to be vacated. We disagree.
Article 29 of the Massachusetts Declaration of Rights provides in relevant part that every citizen be tried by free, impartial, and independent judges. See Alford v. Boston Zoning Comm'n, 84 Mass. App. Ct. 359, 364 (2013). A judge must recuse himself or herself in any proceeding in which the judge's impartiality might be reasonably questioned. See S.J.C. Rule 3:09, Canon 2, Rule 2.11 (A) (2016). However, the parties may choose to waive such disqualification. See S.J.C. Rule 3:09, Canon 2, Rule 2.11 (C) (2016). When faced with an issue of recusal, the judge must determine: (1) whether subjectively the judge can rule fairly, free from bias and prejudice, and (2) whether objectively the judge's impartiality might reasonably be questioned. See Commonwealth v. Eddington, 71 Mass. App. Ct. 138, 143 (2008). "The law concerning recusal of a judge is well established: the decision to withdraw rests first within his sound discretion." Matter of a Care & Protection Summons, 437 Mass. 224, 239 (2002). We review such decisions concerning recusal for an abuse of discretion. See Haddad v. Gonzalez, 410 Mass. 855, 862 (1991).
Here, during the defendant's cross-examination of the plaintiff's witness, T.B., the judge revealed that he believed T.B. appeared before him seeking a similar harassment prevention order, and while he found T.B. to be credible at the time of the previous hearing, he denied her request for such order. The judge explained that he wanted to make both parties aware of his involvement in T.B.’s prior hearing, and stated that it did not in any way affect his ability to hear the case today. At this time, neither party objected to the judge continuing to hear the case. In this posture, the claim is waived. See Doucette v. Massachusetts Parole Bd., 86 Mass. App. Ct. 531, 534-535 (2014) ("A party having knowledge of facts possibly indicating bias or prejudice on the part of an arbitrator, referee, juror or other person having similar functions cannot remain silent and thereafter on that ground successfully object to the decision").
The defendant's concerns regarding the judge's impartiality only arose after the judge granted the plaintiff's request for the c. 258E order in relation to a motion for reconsideration.
Even if the argument was not waived, it is without merit. The defendant claims that where the judge already heard T.B.’s testimony, his failure to recuse constituted prejudicial error. With little specificity and particularity, the defendant argues that T.B.’s prior testimony was prejudicial, and provided the judge with a predisposition of the case that would lead one to objectively question his impartiality. "Although it is possible that an unfavorable disposition could develop during prior proceedings, where that disposition is not so extreme as to display clear inability to render fair judgment, it does not warrant recusal for bias" (citation and quotation omitted). Matter of a Care & Protection Summons, 437 Mass. at 240. Because the defendant's claim is speculative at best, and she has not demonstrated a "clear inability to render fair judgment" on the part of the judge, we discern no abuse of discretion on the part of the trial judge for not recusing himself. See id.
2. Defendant's right to cross-examine T.B. The defendant also claims that the judge committed prejudicial and reversable error in denying the defendant her "absolute right" to cross-examine the plaintiff's witness, T.B. We disagree.
Contrary to the defendant's argument, it is well-settled that the right to cross-examination is not absolute. See Commonwealth v. Belmer, 78 Mass. App. Ct. 62, 67 (2010) (defendants may not use "cross-examination ... in whatever way, and to whatever extent, [he or she] might wish" [citations and quotation omitted]). "While it is true that a defendant has a general right to cross-examine witnesses against him, a judge may limit cross-examination for good cause in an exercise of discretion" (citation and quotations omitted). A.P. v. M.T., 92 Mass. App. Ct. 156, 167 (2017). For example, although each side must be given a meaningful opportunity to challenge the other's evidence, a judge ought not permit a party to use cross-examination for harassment or discovery purposes. See id.
Here, following the judge's revelation that he presided over T.B.’s harassment prevention order hearing, the defendant sought to inquire into the circumstances under which T.B. sought the harassment prevention order. The judge, in an exercise of discretion, promptly terminated this line of questioning. The question was not relevant to the issuance of the order in this case, and it may have been an attempt to harass the witness. The defendant lodged no objection. In fact, the defendant had already completed T.B.s’ cross-examination and only a single follow-up question was not permitted. See F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 600-601 (2015) (judge properly limited cross-examination of plaintiff's witnesses by telling defense counsel to "move on," where judge was concerned with defendant's attempt to use cross-examination for improper purpose, and defendant received meaningful opportunity to challenge evidence presented). There was no error or an abuse of discretion.
3. Defendant's motion to strike testimony of unsequestered witness. The defendant also, with little citation to case law, claims that the judge erred in denying her motion to strike the testimony of T.B. because she had not been sequestered. The defendant claims it was improper to permit T.B. to listen to the entirety of the proceedings, including the plaintiff's testimony, prior to testifying. We disagree.
"Sequestration of witnesses lies in the discretion of the trial judge." Zambarano v. Massachusetts Turnpike Auth., 350 Mass. 485, 487 (1966). Here, as an initial matter, the defendant neither requested a list of witnesses nor did she request that witnesses be sequestered. In that posture, the issue is waived. Even if it were not waived, the defendant has made no showing that the plaintiff's testimony improperly influenced or tainted T.B.’s testimony, particularly where T.B. had already testified to these very same events at her own prior c. 258E order hearing. Cf. Adoption of Jacob, 99 Mass. App. Ct. 258, 267-269 (2021) (judge properly sequestered grandfather where he coached father during his testimony, took " ‘voluminous’ notes throughout the closed proceedings," and his presence might have affected other witnesses’ candor on the stand). We discern no error, and no abuse of discretion.
4. Sufficiency of the evidence. Finally, the defendant claims that the plaintiff failed to provide sufficient evidence of harassment, as defined by G. L. c. 258E, § 1, to warrant the issuance of the order. In particular, she argues that there is insufficient evidence of three or more acts of willful and malicious conduct. We disagree.
"We review a c. 258E order to determine whether a fact finder could conclude by a preponderance of the evidence, together with all permissible inferences that the defendant had committed [three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that [did] in fact cause fear, intimidation, abuse or damage to property" (citation and quotation omitted). R.S. v. A.P.B., 95 Mass. App. Ct. 372, 375 (2019).
Here, the judge readily identified the first and third instances of harassment. The first occurred on August 1, 2020, in which the plaintiff and defendant were at the beach. On this date, the plaintiff came out of the water, flipped her wet hair backwards in the vicinity of the defendant. After doing so, the defendant was "enraged," got in the face of the plaintiff, and yelled, "Stop being a fucking bitch, [B.M.]."
The plaintiff testified that the defendant was within five or six feet of her during the verbal altercation.
The third incident of harassment occurred on August 9, 2020, in which the defendant physically assaulted the plaintiff. In this incident, the defendant encountered the plaintiff as she was leaving the beach, and invited the plaintiff to come to her pool, "so [she could] kick the fucking shit out of [her.]" The defendant became angry after the plaintiff told the defendant that nobody got her wet, and questioned why the defendant even wanted to fight her. At this point, the defendant grabbed the plaintiff by the hair, threw her to the ground, and began kicking her in the face and back. After the plaintiff escaped from the defendant's grasp, she retreated to her friend's house. The defendant followed the plaintiff to such house, and began yelling at her from outside the house, "I'll kick your ass, I'll kill you."
Therefore, considering these incidents, the judge was permitted to infer by a preponderance of evidence that each constituted an instance of willful and malicious conduct on the part of the defendant, committed with the intent to cause fear and intimidation, that did so cause the plaintiff to be fearful and intimidated. See id. See also A.T. v. C.R., 88 Mass. App. Ct. 532, 536-538 (2015) (eleven-year-old defendant's threat to make plaintiff's life "a living hell," and subsequent threat to punch plaintiff in the breasts, both constituted willful and malicious conduct, done with intent to cause fear and intimidation).
The plaintiff testified that she was fearful as a result of the incidents with the defendant.
However, the defendant claims that the second incident, in which the defendant gave the plaintiff mere "dirty looks" on the beach, was insufficient to constitute harassment. We disagree.
The judge found that the second instance of willful and malicious conduct occurred during another encounter on the beach between the plaintiff and defendant on August 5th or 6th. During this encounter, both the plaintiff and T.B. testified that the defendant again came over to their group of friends, and began staring at the plaintiff in an intimidating manner. Staring alone is insufficient to constitute harassment. See Commonwealth v. McDonald, 462 Mass. 236, 244 (2012) (staring alone, without other conduct from which inference of malice can be drawn, is not sufficient to constitute harassment). However, staring in light of other intimidating and menacing conduct, is sufficient to constitute harassment. See Commonwealth v. Robinson, 444 Mass. 102, 103-105 (2005) (defendant's glaring at victim, in addition to other menacing and intimidating behavior, was sufficient to constitute harassment). Therefore, when viewed in context with the other two instances of malicious conduct, in particular the defendant's subsequent physical beating of the plaintiff, the judge could properly infer that the defendant staring at the plaintiff while near her on the beach, in a threatening and intimidating manner, constituted not merely "dirty looks," but rather intentional harassment of the plaintiff. See A.T., 88 Mass. App. Ct. at 537-538 ("fact finders are instructed to examine the defendant's actions and all of the surrounding circumstances and then to draw reasonable inferences to determine what was the defendant's intent"). Accordingly, the evidence supporting the c. 258E harassment prevention order was sufficient.
Harassment prevention order dated August 24, 2020, affirmed. Order dated October 27, 2020, denying motion for reconsideration, affirmed.