Commonwealth v. Wray

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14-P-368 Appeals Court

COMMONWEALTH vs. GERMAINE WRAY.

No. 14-P-368.

Hampden. April 1, 2015. - September 28, 2015.

Present: Vuono, Meade, & Carhart, JJ.

Practice, Criminal, Objection, Offer of proof. Evidence, Offer
of proof, Prior inconsistent statement, Impeachment of
credibility, Credibility of witness. Witness, Impeachment,
Credibility.

Complaint received and sworn to in the Springfield Division
of the District Court Department on November 20, 2012.

The case was tried before Mary E. Hurley, J.

Peter J. Brewer for the defendant.
Alyson C. Yorlano, Assistant District Attorney, for the
Commonwealth.

CARHART, J. The defendant appeals from his convictions of

assault and threating to commit a crime.1 He claims that the

1
The defendant was charged with assault and battery and was
convicted of the lesser included offense of assault. He was
also charged with assault by means of a dangerous weapon, but
 2

judge erred by barring defense counsel from eliciting from the

alleged victim, Rosa Cruz, the sole witness in the case, whether

she had made certain statements to defense counsel that were

inconsistent with her testimony at trial. We reverse.

Background. The jury could have found the following facts

based on the evidence presented at trial. The defendant and

Cruz had been in a dating relationship for about one month,

when, on November 19, 2012, they both attended a Narcotics

Anonymous meeting in West Springfield. Before the meeting

began, the defendant saw Cruz hug another man. The defendant

became upset, started yelling at Cruz, and said that he was

going to come back and "fuck [her] up." That night, Cruz was

interviewed by and gave two statements to the police. In her

first statement, Cruz did not say that the defendant pushed her.

In her second statement, Cruz stated that the defendant did, in

fact, push her.2 At trial, Cruz testified that the defendant

tried to push her, but said several times that she could not

remember if he actually touched her. Subsequently, the

prosecutor refreshed her memory with the second statement that

she gave to the police on the night of the incident. The

following exchange ensued:

the Commonwealth filed a nolle prosequi on that count prior to
trial.
2
Neither statement appears in the record.
 3

Prosecutor: "Did he make physical contact with you?"

Cruz: "He pushed me, yeah, but it wasn't a push
that I fell."

Prosecutor: "Okay. But he touched you?"

Cruz: "Yes."

On the day of trial, before it began, defense counsel spoke

with Cruz about the incident that formed the basis for the

charge of assault and battery.3 Specifically, defense counsel

asked Cruz whether the defendant had pushed her. Cruz stated

that the defendant did not touch her on November 19, 2012, and

that he did not make a pushing or threatening motion towards

her. On recross-examination, defense counsel attempted to ask

Cruz about these statements. The Commonwealth objected, after

which the following discussion took place at sidebar:

Prosecutor: "This is definitely hearsay."

The court: "Yes, it's hearsay."

Defense counsel: "It's used to impeach her."

The court: "It's hearsay."

Prosecutor: "I mean if [defense counsel] wants to
take the stand and I can cross-examine her."

The court: "It's hearsay. It's not . . . I mean
(inaudible) as it's phrased."

3
The parties agreed to expand the record on appeal to
include the details of this conversation.
 4

The judge sustained the Commonwealth's objection and instructed

the jury to disregard the question.

In her closing argument, defense counsel argued that Cruz's

"testimony [was] not really reliable" because she did not state

that the defendant touched her until the prosecutor refreshed

her recollection with one of her statements to police. The

Commonwealth argued in its closing argument that Cruz's

reliability was the central issue in the trial.4 As noted, the

jury found the defendant not guilty of assault and battery, but

guilty of the lesser included offense of assault and of

threatening to commit a crime.

Discussion. The defendant argues that a reversal is

required because the judge improperly prevented defense counsel

from eliciting impeachment evidence from Cruz on recross-

examination. The Commonwealth concedes that the judge erred,

but asserts that the error does not warrant a new trial. We

begin by addressing the appropriate standard of review.

The defendant claims that the appropriate standard of

review is prejudicial error because defense counsel preserved

the issue by informing the judge, at sidebar, that she intended

to offer the statement for impeachment purposes. The

4
Specifically, the prosecutor stated: "The question, is do
you believe her or don't you believe her? That's what this
trial is about."
 5

Commonwealth argues that because defense counsel failed to take

exception to the judge's adverse ruling, our review is for a

substantial risk of a miscarriage of justice. We disagree. The

"archaic" rule requiring an exception to preserve an issue for

appellate review was abolished by the adoption of rule 22 of the

Massachusetts Rules of Criminal Procedure, 378 Mass. 892 (1979).

Rule 22 provides that "[e]xceptions to rulings or orders of the

court are [now] unnecessary and . . . it is [now] sufficient

that a party, at the time the ruling or order of the court is

made or sought, makes known to the court the action which he

desires the court to take or his objection to the action of the

court . . . ." Here, defense counsel stated at sidebar that she

wanted to introduce the prior inconsistent statement at trial

for the purpose of impeaching the witness's testimony. See

Commonwealth v. Hollie, 47 Mass. App. Ct. 538, 541 n.3 (1999)

("[T]rial counsel need not achieve perfection in identifying

every impropriety . . . so long as the objection alerts the

judge to the grounds on which trial counsel objected").

Although defense counsel did not specifically object to the

judge's adverse ruling, the fact that she, in effect, made an

offer of proof as to the statement's admissibility put the judge

on notice of the purpose of the proffered statement and

satisfied the requirements of rule 22.5 See Commonwealth v.

5
The dissent contends that defense counsel's statements did
 6

Jewett, 392 Mass. 558, 562 (1984), quoting from Commonwealth v.

Graziano, 368 Mass. 325, 330 (1975) (counsel is "not required to

make further efforts 'in the face of the judge's unequivocal

adverse ruling'"); Commonwealth v. Bonds, 445 Mass. 821, 828

(2006) ("We have consistently interpreted [rule 22] to preserve

appellate rights only when an objection is made in a form or

context that reveals the objection's basis"). See also

Commonwealth v. Ayala, 29 Mass. App. Ct. 592, 598 n.8 (1990).

"To rule otherwise would exalt form over substance."

Commonwealth v. Morin, 52 Mass. App. Ct. 780, 783 n.3 (2001),

quoting from Commonwealth v. Spear, 43 Mass. App. Ct. 583, 589

n.8 (1997). Accordingly, we review for prejudicial error.

Commonwealth v. Parent, 465 Mass. 395, 399 (2013).

not constitute an offer of proof and notes that an offer of
proof was required here "to preserve for appellate review the
issue of the degree of prejudice caused by the erroneous
ruling." Post at , quoting from Commonwealth v. Chase,
26 Mass. App. Ct. 578, 582 (1988). We disagree; an offer of
proof was not required here because the substance of the
evidence was "apparent from the context." Mass. G. Evid.
§ 103(a)(2) (2015). Because this was a single-witness case,
defense counsel's strategy at trial was to undermine Cruz's
credibility by impeaching her with her contradictory statements.
Defense counsel's question to Cruz -- "And I asked you whether
there was physical contact?" -- considered in light of the
defendant's trial strategy, makes clear the substance and
materiality of the evidence. See Commonwealth v. Donovan, 17
Mass. App. Ct. 83, 88 (1983) (no offer of proof needed where
substance of testimony was apparent from defense counsel's
questions). Cf. Commonwealth v. Campbell, 51 Mass. App. Ct.
479, 482 (2001) (offer of proof required where "counsel's wide
open question may also have elicited inadmissible, irrelevant
evidence").
 7

"An error is nonprejudicial only '[i]f . . . the conviction

is sure that the error did not influence the jury, or had but

very slight effect . . . .'" Commonwealth v. Flebotte, 417

Mass. 348, 353 (1994), quoting from Commonwealth v. Peruzzi, 15

Mass. App. Ct. 437, 445 (1983). "The inquiry cannot be merely

whether there was enough to support the result, apart from the

phase affected by the error." Commonwealth v. Peruzzi, supra at

445-446, quoting from Kotteakos v. United States, 328 U.S. 750,

764-765 (1946). Rather, it is "whether the error itself had

substantial influence. If so, or if one is left in grave doubt,

the conviction cannot stand." Id. at 746, quoting from

Commonwealth v. Kotteakos, supra at 765.

First, we reject the Commonwealth's argument that although

the judge erred in ruling that defense counsel could not present

the impeachment evidence as it related to the assault and

battery charge, the judge had the discretion to prevent such

inquiry as it related to the threat to commit a crime charge

because it did not affect the elements of that offense. This

argument misses the point. The issue is the extent to which the

admission of an inconsistent statement would have affected the

victim's credibility. See Commonwealth v. Polk, 462 Mass. 23,

33 (2012) (where proffered evidence goes to victim's credibility

in case that rests "almost entirely" on victim's credibility, "a

judge's evidentiary decision assumes a constitutional
 8

dimension"). Cf. Commonwealth v. Sherry, 386 Mass. 682, 693

(1982) (no abuse of discretion where excluded statement "was

offered only to impeach [the victim's] credibility generally and

not as to her description of the events in issue"). Here,

because Cruz's testimony was the only evidence presented for

both the assault and battery and the threat to commit a crime

charges, her "credibility was the sole issue at trial" and thus

was material. See Commonwealth v. Parent, supra at 401-402

(exclusion of prior inconsistent statement required reversal of

one of three charges because that charge was based solely on

victim's testimony).6

The Commonwealth also contends that in both instances, the

judge's limitation on defense counsel's ability to confront Cruz

with her inconsistent statement was not reversible error because

the statement was cumulative of other impeachment evidence

presented at trial, and defense counsel adequately undermined

Cruz's credibility on cross-examination. We disagree. The

right to confront witnesses is a fundamental right granted to

all persons who are accused of a criminal offense. See Olden v.

6
We acknowledge that Commonwealth v. Parent is
distinguishable from this case because there, the court vacated
only the conviction associated with the improperly excluded
statement. 465 Mass. at 396-397. As noted, however, because
here Cruz's credibility was the main issue at trial for both
charges, we conclude that the judge's error also prejudiced the
defendant with respect to the threat to commit a crime charge.
 9

Kentucky, 488 U.S. 227, 231 (1988); Commonwealth v. Tam Bui, 419

Mass. 392, 400 (1995). This right, found in the Sixth Amendment

to the United States Constitution as well as in art. 12 of the

Massachusetts Declaration of Rights, takes many forms.

Commonwealth v. Tam Bui, supra. In the context of a criminal

trial, "'a primary interest secured by [the confrontation

clause] is the right of cross-examination' . . . [which] is the

principal means by which the believability of a witness and the

truth of his testimony are tested." Davis v. Alaska, 415 U.S.

308, 315-316 (1974), quoting from Douglas v. Alabama, 380 U.S.

415, 418 (1965). Impeachment with prior inconsistent statements

is one method of testing the witness's credibility. Indeed, it

is well established "that if a witness either upon his direct or

cross-examination testifies to a fact which is relevant to the

issue on trial the adverse party, for the purpose of impeaching

his testimony, may show that the witness has made previous

inconsistent or conflicting statements." Commonwealth v.

Parent, 465 Mass. at 399-400, quoting from Robinson v. Old

Colony St. Ry., 189 Mass. 594, 596 (1905). See Commonwealth v.

Polk, 462 Mass. at 33, quoting from Commonwealth v. Ruffen, 399

Mass. 811, 816 (1987) ("[O]ur 'Constitution requires that a

defendant be permitted to introduce evidence which may

materially affect the credibility of the [alleged] victim's

testimony'"). Moreover, where prior inconsistent statements
 10

relate to a main issue at trial, the judge has "no discretion to

preclude their use for impeachment purposes." Commonwealth v.

Donnelly, 33 Mass. App. Ct. 189, 197 (1992). See Commonwealth

v. Moore, 50 Mass. App. Ct. 730, 736-737 (2001) (judge erred in

disallowing introduction of contradictory statements which could

have undermined witness's credibility). See also Commonwealth

v. West, 312 Mass. 438, 440 (1942).

Here, although the prosecutor and judge misconstrued the

proffered evidence as hearsay, defense counsel indicated that

she sought to introduce it for purposes of impeaching Cruz.

Indeed, the crux of the defense at trial was that Cruz was not

credible and that "evidence that her description [of the

defendant's actions] changed from one telling to the next is

probative of whether her story is true and whether it deserves

to be credited beyond a reasonable doubt." Commonwealth v.

Parent, 465 Mass. at 401. By limiting defense counsel's ability

to confront Cruz with the inconsistent statement, the judge

deprived the jury of an essential statement made by Cruz, which

could have assisted the jury in evaluating her credibility.

This limitation is particularly troublesome here because this

was a one-witness trial, the outcome of which necessarily

depended on Cruz's credibility. Moreover, Cruz's inconsistent

statements were not cumulative of other evidence as the
 11

Commonwealth claims.7 To the contrary, we can think of no more

compelling impeachment evidence than statements such as the one

here that are diametrically opposed to the witness's in-court

testimony.8 In sum, because Cruz's testimony was the only

evidence presented at trial, her credibility was a critical

issue in the case. Accordingly, the judge's failure to allow

defense counsel to elicit Cruz's prior inconsistent statement

7
The dissent also concludes that this evidence was
cumulative of other impeachment evidence. See post at .
The cases relied upon by the dissent in reaching this
conclusion, however, are inapposite. In Commonwealth v. Clarke,
418 Mass. 207, 211-212 (1994), the Supreme Judicial Court held
that it was not error to deny defense counsel's request to admit
in evidence written inconsistent statements, which had already
been read in their entirety to the jury. Here, however, the
jury were prevented from even hearing about Cruz's statements to
defense counsel. Likewise, Commonwealth v. Aguiar, 78 Mass.
App. Ct. 193 (2010), is readily distinguishable. In that case,
the victim's mother testified that during a counselling session
at which she was present, the defendant admitted to sexually
assaulting the victim. Id. at 198. The defendant testified at
trial and denied making any such statements. Ibid. Defense
counsel then attempted to elicit testimony from the defendant's
wife that the defendant had not made admissions during the
counselling session, but was prevented from doing so. Id. at
205. We concluded that although error, the exclusion of the
wife's testimony was not prejudicial because it "would have
added little to her husband's denial," and the alleged admission
did not figure prominently into either side's theory of the
case. Id. at 206-207. Unlike in Aguiar, the entire case here
turned on whether the jury believed the defendant or Cruz.
Accordingly, the testimony defense counsel sought to elicit was
a critical piece of evidence, which was not cumulative of the
other impeachment evidence presented at trial.
8
Because, however, defense counsel was not allowed to
question Cruz about her inconsistent statement, it is unclear
whether Cruz would have adopted the statement she made to
defense counsel on the day of trial or repudiated it.
 12

deprived the defendant of his right to a fair trial. We

therefore reverse the judgments and set aside the verdicts.

So ordered.
 MEADE, J. (dissenting). The majority concludes that the

defendant was denied a fair trial due to the judge's error on an

evidentiary matter. While I agree that the judge's ruling was

in error, I part company with the majority on whether the matter

was properly preserved as well as its view that the error

resulted in unfair prejudice to the defendant, or (because the

claim was not preserved) whether the error created a substantial

risk of a miscarriage of justice. Because I do not believe a

new trial is required, I respectfully dissent.

During cross-examination of the victim, defense counsel

impeached the victim with the fact that her initial report to

the police did not include her claim that the defendant pushed

her.1 Defense counsel also elicited from the victim that she

only testified to the occurrence of the push after her

recollection was refreshed. On redirect, the prosecutor

established that both of the victim's statements to the police

were made on the night of the incident.

On recross-examination, defense counsel changed tack, and

attempted to ask the victim about a conversation the two had had

earlier in the day before the trial began. After the victim

1
The victim gave the police two conflicting reports of what
occurred on the evening in question. In her first statement
(given at the scene), the victim did not mention being pushed by
the defendant, and in the second (given at the police station),
she stated that the defendant pushed her.
 2

acknowledged the conversation, defense counsel asked: "And I

asked you whether there was physical contact?" At that point,

as described in the majority opinion, the prosecutor objected,

and a sidebar conference was held. There, the prosecutor

imposed his hearsay objection, and the judge agreed despite

defense counsel's explanation that she was trying to impeach the

victim. The judge ended the sidebar conference and ruled that

the question, "as it [was] phrased," sought a hearsay response.

The judge sustained the prosecutor's objection. Defense counsel

did not attempt to rephrase the question, said nothing more, and

returned to the subject of the victim's conflicting statements

to the police.

The majority concludes that even though defense counsel

"did not specifically object" to the judge's restriction on

cross-examination, the defendant's Sixth Amendment confrontation

clause claim was preserved for appellate review. For the

majority, this occurred when defense counsel "in effect" made an

offer of proof as to the purpose of the question. Having it

both ways, the majority also claims that an offer of proof was

not required. See ante at & note 5. I disagree.

Although the majority is correct regarding the impropriety of

the Commonwealth's antiquated notion that the defense counsel

should have taken an "exception" to the ruling, the issue was

nonetheless not preserved where defense counsel failed to object
 3

when the judge prohibited the intended line of inquiry. All

counsel needed to do to preserve the issue for appeal was to

say, "Please note my objection," or at the very least, she could

have rephrased the question in accordance with the judge's

ruling. Instead, defense counsel silently walked away from the

side-bar conference and resumed her inquiry regarding the

victim's statements to the police.

The majority's conclusion that this issue was preserved is

fatally at odds with the contemporaneous objection rule and the

obvious and salutary purposes of the waiver doctrine, "a crucial

component of our legal system." Commonwealth v. Kilburn, 438

Mass. 356, 360 (2003). See Commonwealth v. Bly, 444 Mass. 640,

650 (2005) ("[T]he waiver doctrine . . . is a cornerstone of our

criminal justice system"). See also Commonwealth v. Amirault,

424 Mass. 618, 641 n.15 (1997) ("A constitutional right is, in

most cases . . . a right to insist that things be done in a

certain way, but it is not a right that they be done in that way

if the defendant does not choose to insist. . . . [A] right

that must be claimed is not denied if it is not claimed, and the

proceeding in which the claim is not made is, in that respect,

wholly free from error"). A simple objection would have

preserved the issue for appeal, but that did not occur.

Furthermore, defense counsel's statement that she wished to

impeach the victim did not constitute an offer of proof. "The
 4

offer of proof requirement serves several purposes. An offer of

proof may assist the trial judge in making the correct ruling.

And the presence of an offer of proof in a record on appeal

enables an appellate court to determine whether an error was

made and, if so, how harmful it was to the defendant."

Commonwealth v. Chase, 26 Mass. App. Ct. 578, 581 (1988). See

Mass. G. Evid. § 103(a)(2) (2015). In general, an offer of

proof is not required when evidence is excluded on cross-

examination, because the offer must point to evidence "actually

available . . . , and the cross-examiner will often be unable to

state what the answer would have been if the question had been

allowed." Commonwealth v. Barnett, 371 Mass. 87, 95 (1976).

But this case does not fit within that general rubric. Defense

counsel was not only the proponent of the excluded evidence, but

she was also fully aware of the contents of her pretrial

exchange with the victim. In that posture, defense counsel was

uniquely and solely qualified to explain, in an offer of proof,

what she expected the victim's answer to have been had she been

permitted to ask the excluded question. Even though the "judge

did not need an offer of proof to make the correct ruling," such

an offer was required "to preserve for appellate review the

issue of the degree of prejudice caused by the erroneous

ruling." Commonwealth v. Chase, supra at 582. In fact,

contrary to the majority's opinion, this is not a case where
 5

counsel "was not required to make further efforts 'in the face

of the judge's unequivocal adverse ruling.'" Commonwealth v.

Jewett, 392 Mass. 558, 562 (1984), quoting from Commonwealth v.

Graziano, 368 Mass. 325, 330 (1975).2 Indeed, the judge's ruling

expressly gave defense counsel the opportunity to rephrase the

question if not lodge an objection for the first time.

Finally, prior to the defendant's appeal being docketed in

this court, the parties stipulated to an expansion of the

record. As set out in the majority opinion, the parties agreed

that when asked prior to trial by defense counsel, the victim

denied that a battery occurred on the night in question. While

I remain puzzled as to the purpose of this document nestled in

the defendant's record appendix, or for that matter why the

Commonwealth joined the stipulation, what is clear is that it is

2
In support of its conclusion that the issue was preserved
and defense counsel, "in effect, made an offer of proof" by
telling the judge she sought to impeach the victim, the majority
relies on Commonwealth v. Jewett, 392 Mass. at 562, which is
inapposite. In Jewett, defense counsel explained in "detail"
how counsel proposed to call a witness and how that witness
would support the defendant's misidentification defense. Id. at
561. Even though the judge "cut off" the offer of proof, the
court held the judge was provided with sufficient information to
have been alerted to the relevance of the witness's testimony in
an alibi and mistaken identity case. Ibid. Furthermore, the
judge concluded the discussion by saving the defendant's rights.
Id. 561-562 & n.3. Here, in contrast, there was no effort to
discuss the significance of the testimony, let alone a detailed
effort. Rather, defense counsel said five words: "It's used to
impeach her," simply walked away, and the judge did not save any
rights.
 6

not an appropriate substitute for an offer of proof.3 The

document merely recites what the parties agreed the content of

the conversation was, but it does not specify how the victim

would have answered the excluded question at trial. See

Commonwealth v. Fontes, 396 Mass. 733, 738 (1986) (vague and

generalized offers of proof are not adequate). See also

Commonwealth v. Donahue, 369 Mass. 943, 950-951, cert. denied,

429 U.S. 833 (1976) (after judge restricted cross-examination,

"it was not made apparent to the judge by defense counsel that

restriction of this line of questioning would substantially

prejudice the defendant, nor was it made clear how the answers

sought could be substantially helpful to the defendant's case").

More importantly, even if one could conclude that the victim

would have admitted rather than denied the contents of

conversation as reported to this court by the parties,4 none of

this was before the judge. Offers of proof are not properly

made for the first time on appeal; they need to be made during

trial, as they "may assist the trial judge in making the correct

ruling." Commonwealth v. Chase, 26 Mass. App. Ct. at 581. Like

a timely objection, an offer of proof at trial provides both the

3
The majority does not claim otherwise.
4
The majority likewise properly states that it unclear
whether the victim would have adopted the statement or
repudiated it. See ante at note 8.
 7

judge and the prosecutor the opportunity to consider, and

perhaps rectify, their decisions and trial tactics while it is

still possible to do so. See Commonwealth v. Morris M., 70

Mass. App. Ct. 688, 697-698 (2007). Simply put, the defendant's

trial was the "main event," not merely a "tryout on the road" to

the appeal. Wainwright v. Sykes, 433 U.S. 72, 90 (1977).

Appellate review should be based on what occurred at trial, not

what might have been. See Commonwealth v. Stout, 356 Mass. 237,

242 (1969); Commonwealth v. Chase, 433 Mass. 293, 297 (2001).

The issue was not preserved, and thus, this court's review

should be limited to determining whether the error created a

substantial risk of a miscarriage of justice.

To determine whether the judge's error created a

substantial risk of a miscarriage of justice, and keeping in

mind that "[e]rrors of this magnitude are extraordinary events

and relief is seldom granted," Commonwealth v. Randolph, 438

Mass. 290, 297 (2002), we ask four questions. They are: "(1)

Was there error? (2) Was the defendant prejudiced by the error?

(3) Considering the error in the context of the entire trial,

would it be reasonable to conclude that the error materially

influenced the verdict? (4) May we infer from the record that

counsel's failure to object or raise a claim of error at an

earlier date was not a reasonable tactical decision?" Id. at

298 (citations omitted). "Only if the answer to all four
 8

questions is 'yes' may we grant relief." Ibid. See

Commonwealth v. Russell, 439 Mass. 340, 345 (2003).

I agree with the majority that, as the Commonwealth

concedes, the judge's hearsay ruling was erroneous. Although

there was error, it neither unfairly prejudiced the defendant

nor materially influenced the verdict. What unfolded in this

case was the common but unfortunate reality of a domestic

violence victim being reluctant to testify against her abuser.

Her testimony on whether a battery occurred was vague and

contradictory. Her memory had to be refreshed before she

testified that the defendant pushed her. Defense counsel

thoroughly and effectively cross-examined the victim on her

contradictory statements to the police, and the necessity of the

prosecutor refreshing her recollection. Defense counsel

continued the same theme in her closing argument in which she

highlighted the inconsistencies in the victim's testimony,

argued that the victim was not credible, and suggested that she

was pressured by the prosecutor to provide the "right answer."

Defense counsel's closing argument relative to the making

threats charge focused on the vagueness of the defendant's

statement that he was "going to fuck you up," and at whom it was

directed since others were present. Counsel further argued

that: it was not a crime to use "angry words"; it was not

reasonable for the victim to believe the defendant was going to
 9

carry out the threat; the victim did not summons the police; and

the victim and the defendant remained friends. Defense counsel

neither challenged the victim's credibility vis-à-vis the

threats charge, nor argued that the victim's equivocation on the

battery was a reason for finding the defendant not guilty of the

threats charge. Indeed, threatening to commit a crime does not

include any element of a physical touching. See Commonwealth v.

Sholley, 432 Mass. 721, 724-725 (2000).

Against this backdrop, all that remains to be determined is

whether the judge's ruling, which precluded an additional round

of impeachment on the occurrence of the battery, unfairly

prejudiced the defendant or whether the error materially

influenced the verdict. I answer both questions in the

negative. The most informative item -- as well as the highest

contributor to my conclusion -- is the glaring fact that the

jury only convicted the defendant of the lesser included charge

of assault. In other words, despite the judge's error, the jury

did not believe the victim's testimony on the occurrence of

battery. Any additional impeachment on this issue would have

been cumulative of what had been achieved on the assault and

battery charge, and it would not have been relevant to the

defense mounted and argued on the threats charge. See

Commonwealth v. Aguiar, 78 Mass. App. Ct. 193, 206-207 (2010)

(exclusion of cumulative impeachment evidence was error, but not
 10

prejudicial). Cf. Commonwealth v. Clarke, 418 Mass. 207, 211-

213 (1994) (no abuse of discretion in exclusion of witness's

prior inconsistent written statements where they would have been

cumulative of statements read to jury and defendant impeached

witness with twenty prior convictions, including convictions of

crimes of dishonesty).5

Although I conclude the matter was not preserved, and no

risk of a miscarriage of justice resulted, I would reach the

same conclusion if it had been the subject of a proper objection

and offer of proof. In the end, the error did "not influence

the jury, or had but very slight effect." Commonwealth v.

Flebotte, 417 Mass. 348, 353 (1994) (quotation omitted). "If

the defendant had been entitled to a perfect trial, I would

comfortably side with the majority. But he was not."

5
The majority claims Commonwealth v. Aguiar, supra, is
inapposite because here "the testimony defense counsel sought to
elicit was a critical piece of evidence, which was not
cumulative of other impeachment evidence at trial." See ante at
note 7. However, as described above, it is abundantly clear
that the victim had already successfully been impeached on the
occurrence of the battery through her contradictory statements
to the police. Additional impeachment on the occurrence of the
battery through a pretrial conversation with defense counsel
would most certainly be cumulative. Similarly, the majority
finds fault in any comparison to Commonwealth v. Clarke, supra.
That case merely illustrates the idea of cumulative evidence in
a different context, which is why my citation to it is preceded
with a cf. signal. The majority is correct that the jury were
prevented from hearing about the victim's conversation with
defense counsel. However, the topic of that conversation was
the same as the topic of the victim's impeachment vis-à-vis her
statements to the police.
 11

Commonwealth v. Ramsey, 76 Mass. App. Ct. 844, 852 (2010)

(Meade, J., dissenting), citing Commonwealth v. Lodge, 431 Mass.

461, 476 (2000). Because the defendant received a fair trial, I

respectfully dissent.