Opinion
14-P-244
04-29-2015
COMMONWEALTH v. KENDAL MURGA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
After a jury trial, the defendant, Kendal Murga, was convicted of two counts of assault and battery and one count of assault and battery by means of a dangerous weapon. On appeal, the defendant argues that the trial judge erred when he (1) refused to instruct the jury as to defense of another, and (2) limited the scope of defense counsel's cross-examination of a witness to establish motive and bias. We affirm.
1. Defense of another jury instruction. As originally stated in Commonwealth v. Martin, 369 Mass. 640, 649 (1976), "An actor is justified in using force against another to protect a third person when (a) a reasonable person in the actor's position would believe his intervention to be necessary for the protection of the third person, and (b) in the circumstances as that reasonable person would believe them to be, the third person would be justified in using such force to protect himself." Pursuant to this formula, "the circumstances must be viewed from the perspective of the intervening defendant, not of the third party." Commonwealth v. Young, 461 Mass. 198, 209 (2012). A defendant is entitled to a defense of another jury instruction when the evidence viewed in the light most favorable to the defendant supports it. Commonwealth v. Monico, 373 Mass. 298, 299-300 (1977). We recount the facts in such light.
On the evening of October 15, 2011, the defendant was living in Gloucester with Jamea Silva and her son. While she was cooking dinner, Silva received a call and text messages from Fabio Louis Severino, the father of her son, indicating that he and "B" were coming over. At the time, Silva had an active restraining order against Severino. On one prior occasion, Severino stated he was going to kill Silva with a baseball bat, then broke down the door to her apartment, chased her around the apartment, and punched Silva's friend. On another occasion, Severino "trashed" Silva's apartment -- including breaking her coffee table, shattering her sliding glass door, and putting his cousin's head through a wall -- and tried to kill her with a knife. Silva maintains that Severino regularly violates her restraining orders and often sends threatening text messages. The defendant knew of this restraining order and the prior assaults committed by Severino against Silva.
Sometime after Silva received the telephone call from Severino indicating that he and his friend were coming over, the defendant stepped outside to smoke a cigarette. While smoking a cigarette on the porch, the defendant saw Severino and an individual named Castillo arrive in a taxi. At that point, Silva and her son went to the neighboring apartment. There is conflicting testimony regarding how the ensuing altercation became physical, but two facts that are uncontradicted are that the defendant told Severino and Castillo to leave and also struck first. The defendant maintains that he only became physical after the two men tried to get past him to enter the apartment and Severino raised his fist as if to hit the defendant. The entire altercation was "quick," and the two men never entered Silva's apartment.
While Silva's history with Severino raises serious concerns for her safety, the fact remains that she was not present for the physical altercation, as she was behind closed doors in a neighboring apartment. See Commonwealth v. Scott, 463 Mass. 561, 576 (2012) (defendant not entitled to defense of another instruction when the other person was not in present at the time of attack). Either Silva or the defendant could have also called the police, thereby attempting to avoid the confrontation. Therefore, the judge did not abuse his discretion by refusing to deliver the defense of another jury instruction. Finally, the jury rejected the defendant's own self-defense claim, and therefore "could not have concluded that the defendant acted to defend [Silva] who was not in sight at that point." Id. at 577.
2. Cross-examination of victim. The common law, the Sixth Amendment to the United States Constitution, and art. 12 of the Massachusetts Declaration of Rights all provide criminal defendants with the right to "cross-examine a prosecution witness to show the witness's bias, and hence to challenge the witness's credibility." Commonwealth v. Tam Bui, 419 Mass. 392, 400, cert. denied, 516 U.S. 861 (1995). The defendant claims that the trial judge abused his discretion by prohibiting defense counsel from asking Castillo whether he had health insurance. As demonstrated in the trial record, defense counsel wished to argue that the witness's lack of health insurance biased his testimony, as he hoped for an award of restitution. On appeal, the defendant has the burden to demonstrate that the judge abused his discretion in limiting his attempts to cross-examine Mr. Castillo. Commonwealth v. Colon, 81 Mass. App. Ct. 8, 25 (2011).
Though the defendant must be afforded the right to cross-examine the witnesses called against him and assess their potential for bias, this right is not absolute, as the judge has "broad discretion to determine the scope and extent of cross- examination." Commonwealth v. Johnson, 431 Mass. 535, 538 (2000). A judge may limit cross-examination when concerned about the potential for "harassment, prejudice, confusion of the issues, the witness's safety, or interrogation that is repetitive or only marginally relevant," as well as when questions "go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate." Id. at 540 (citations omitted).
Additionally, "[w]hen the basis for the cross-examination of a witness with respect to bias appears to be tenuous or speculative, the judge may require a party to make a 'plausible showing that the circumstances existed on which the alleged bias is based.'" Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 187 (2013), quoting from Commonwealth v. Tam Bui, supra at 401. In the case at bar, the trial judge noted that defense counsel's intention to demonstrate bias was overly speculative and unduly prejudicial. The judge also did not limit the defendant's attack on the credibility of the witness on other grounds, including his intoxication and drug use and relationship to Severino. Therefore, the judge did not abuse his discretion in limiting cross-examination.
Conclusion. For the above stated reasons, we affirm the defendant's convictions.
Judgments affirmed.
By the Court (Kafker, Wolohojian & Sullivan, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: April 29, 2015.