Opinion
11-P-207
03-28-2012
COMMONWEALTH v. MICHELLE ZYGAROWSKI.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Michelle Zygarowski, appeals from her convictions by a Superior Court jury of three counts of selling, delivering, or furnishing alcohol to a person under the age of twenty-one, G. L. c. 138, § 34. The three young people were her daughter, Alicia Rodrigues, and two friends, Korey Harrington and Michael Demaio. The alcohol was consumed at Harrington's parents' home. Following that, with Harrington driving, the young people were involved in an automobile accident which resulted in the death of Rodrigues. We affirm.
1. Exclusion of evidence of the fatal accident. Defense counsel sought to ask witnesses about the accident suggesting that Harrington and Demaio had an interest in falsely accusing the defendant of providing the alcohol in order to protect others from liability. The judge ruled that counsel could cross-examine the witnesses about whether they had obtained alcohol from someone else, but could not ask about the fatal accident. The defendant argues the ruling was erroneous, denying her rights to present a defense and confront witnesses against her. The trial judge excluded the evidence because he concluded that its probative value was outweighed by its potential to unfairly prejudice the defendant. This is a matter entrusted to the trial judge's broad discretion, and we will not disturb such a determination absent palpable error. Commonwealth v. Simpson, 434 Mass. 570, 578-579 (2001). The defendant has not met this burden: the probative value of the evidence was very low, and the defendant had the opportunity to pursue his theory of bias during cross-examination.
2. Limitation on the scope and extent of cross-examination. The defendant has not shown that the trial judge improperly limited his cross-examination. The defendant was entitled to, and received, the right to reasonable cross-examination to show bias and prejudice. Mass.G.Evid. § 611(b) (2011). Furthermore, the defendant never established 'a plausible showing that the circumstances existed on which the alleged bias is based.' Commonwealth v. Tam Bui, 419 Mass. 392, 401, cert. denied, 516 U.S. 861 (1995). The limitation imposed by the judge, that the fatal accident not be referenced, was not error and did not constitute an abuse of discretion.
3. Instructions on selling, furnishing, or delivering alcohol to a person under the age of twenty-one. The defendant was indicted under G. L. c. 138, § 34, which prohibits the selling, furnishing, or delivering of alcohol to a person under the age of twenty-one. The portion of the statute that addresses 'furnishing' did not apply to the facts of this case because that portion also contains a requirement that the defendant furnish such alcohol 'on premises or property owned or controlled by the person charged.' G. L. c. 138, § 34, inserted by St. 2000, c. 175. It was therefore, on the facts of this case, error to instruct the jury that they could convict the defendant for furnishing alcohol. Our review is limited to whether the inclusion of the instruction created a substantial risk of a miscarriage of justice. We conclude that it did not. Considering the instruction on 'furnishing' in light of the common understanding of the word 'deliver,' there is no risk that the jury convicted the defendant on the 'furnishing' portion of the statute. The judge did not include in the instruction the portion of the statute referring to 'premises or property owned or controlled,' therefore there was no effective difference between the meaning of the word 'furnish' and 'deliver.'
Even if we applied a more favorable standard of review, we would reach the same result.
4. Denial of the defendant's motion to dismiss. The motion to dismiss was properly denied because the clauses permitting an exception to the statute for furnishing or procuring alcohol to one's children or grandchildren do not apply to the 'sale' or 'delivery' provisions in the statute, and do not apply to the facts of this case.
Judgments affirmed.
By the Court (Cypher, Cohen & Wolohojian, JJ.),