Commonwealth v. Magadini

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SJC-11874

COMMONWEALTH vs. DAVID MAGADINI.

Berkshire. December 7, 2015. - June 23, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.

Trespass. Necessity. Practice, Criminal, Request for jury
instructions. Evidence, Cross-examination, Relevancy and
materiality, Bias of government witness.

Complaints received and sworn to in the Southern Berkshire
Division of the District Court Department on April 8, April 9,
and July 8, 2014.

The cases were tried before Fredric D. Rutberg, J.

The Supreme Judicial Court granted an application for
direct appellate review.

Joseph N. Schneiderman for the defendant.
Jessie J. Rossman (Matthew Segal with her) for American
Civil Liberties Union of Massachusetts & others.
John Bossé, Assistant District Attorney, for the
Commonwealth.

HINES, J. The defendant, David Magadini, was convicted by

jury on seven counts of criminal trespass, each based on the
 2

defendant's presence, in 2014, in privately-owned buildings

where he was the subject of no trespass orders.1 Five incidents

occurred between February and March, the sixth occurred on April

8, and the seventh occurred on June 10. Before trial and during

the charge conference, the defendant requested a jury

instruction on the defense of necessity, asserting that his

conduct was justified as the only lawful alternative for a

homeless person facing the "clear and imminent danger" of

exposure to the elements during periods of extreme outdoor

temperatures. The judge denied the request, concluding that the

defendant had legal alternatives to trespassing available. As

to each conviction, the judge imposed concurrent sentences of

thirty days in a house of correction. A single justice of the

Appeals Court stayed the sentences pending resolution of this

appeal. We granted the defendant's application for direct

appellate review.

On appeal, the defendant asserts the following errors at

trial: (1) denial of his request for an instruction on the

defense of necessity; (2) limitation of his cross-examination of

witnesses; (3) misstatements made by the prosecutor during

closing argument; and (4) denial of his motion for a required

1
The judge allowed the defendant's motion for a required
finding of not guilty on an eighth charge, which was based on
the defendant's presence at the site of the former St. James
Church, located in Great Barrington, on April 19, 2014.
 3

finding of not guilty on the charge stemming from the April 8

incident.2 We conclude that the judge erred in denying the

defendant's request for an instruction on the defense of

necessity as to the six trespassing charges related to the

incidents from February through April, 2014,3 and that the error

was prejudicial. Accordingly, we vacate the first six

convictions and remand for a new trial.4 The defendant did not,

however, meet his burden to demonstrate the foundational

requirements for a necessity defense instruction as to the

seventh conviction, stemming from the June 10 trespass.

Therefore, we affirm that conviction as well as the denial of

his motion for a required finding of not guilty for the April 8

incident. We address the defendant's remaining claims, which

relate to issues that may arise at retrial.

Background. We recite the facts the jury could have found,

reserving certain details for our discussion of the specific

2
The defendant, in multiple briefs that he contends are
filed in accordance with Commonwealth v. Moffett, 383 Mass. 201
(1981), raises several new claims and expands on claims made in
his appellate brief.
3
These six charges related to the trespasses by the
defendant on February 20, February 21, March 4, March 6, March
28, and April 8.
4
We acknowledge the amicus brief submitted by the American
Civil Liberties Union of Massachusetts, Committee for Public
Counsel Services, and Massachusetts Association of Criminal
Defense Lawyers in support of the defendant.
 4

issues raised. In 2014, the defendant was charged with

trespassing on three properties in Great Barrington --

Barrington House, Castle Street, and SoCo Creamery. Barrington

House is a mixed-use building with several different

restaurants, an enclosed atrium, and apartments above the

businesses. Castle Street is a three-story building with retail

establishments, offices, and apartments. SoCo Creamery is an

ice cream shop. The defendant was barred from each property by

no trespass orders. The owner of the Castle Street building had

the defendant served with a no trespass order in July, 2008; the

manager of Barrington House had the defendant served in June,

2012; and the owner of SoCo Creamery had the defendant served in

January, 2014. All of the no trespass orders were in effect at

the time the charges were brought against the defendant.

Four charges related to the defendant's presence at

Barrington House. On February 21, March 4, and March 6, police

found the defendant lying in a hallway by a heater during the

evening, nighttime, or early morning hours of days described as

"cold" or "very cold." At approximately noon on April 8, a day

described as "cool," police responded to a report and observed

the defendant walking through a common area in the Barrington

House toward the front door. Two charges stemmed from the

defendant's presence at Castle Street, where police had found

the defendant lying on the floor in the lobby next to a heater
 5

during periods of cold weather. The first incident occurred

between 8 A.M. and 10 A.M. on February 20, 2014; the defendant

was awake. The second incident occurred at approximately 6:30

A.M. on March 28; the defendant was sleeping. The seventh

charge was based on conduct that occurred on June 10, 2014, when

the defendant entered SoCo Creamery, ignored requests by the

clerk to leave the premises, and used the bathroom for ten to

fifteen minutes. The defendant did not dispute that he violated

all of the trespass orders, focusing his case instead on the

necessity defense in cross-examination and his direct testimony.

The defendant, a lifelong resident of Great Barrington,

became homeless after he moved out of his parents' home in 2004.

His purpose in moving out was to "reorganize." He planned to

return to his parents' home, but he was unable to do so because

the "landlord," who "wanted [the defendant] out" refused to

allow it. After leaving his parents' home, he generally lived

outside year-round, but during the winter months, he tried to

"find a more sheltered area" from the "ice and a snow storm."

During the cold weather, the defendant used blankets, gloves,

and scarves to try to stay warm, but when the weather was "so

severe . . . that [it was] not possible," he would seek shelter

in private buildings.

For a two- to three-month period in the winter of 2007, the

defendant stayed at the local homeless shelter, called the
 6

Construct.5 Three days before he began staying there, he had

gone to that shelter at approximately 3 A.M. following a

blizzard. He was refused entry, and he stayed on the porch for

about an hour before being asked to leave. A few days later, he

spoke with someone from the shelter, and he was allowed to stay

for a few months before he was told to leave because of "certain

issues." Therefore, the defendant had no other place to stay in

Great Barrington.6 For a period of "three to four years," he

lived outdoors, first at Stanley Park and later at the outdoor

gazebo behind the Great Barrington Town Hall, where he had been

living at the time of the trespass incidents. He considered the

gazebo his home and registered to vote from that address.7

5
As pointed out in the amicus brief, on its Web site,
Construct advertises "permanent" and "transitional" housing, see
http://constructinc.org/about-us/ [https://perma.cc/5A85-7G9K],
and asserts that persons who "lost" housing "may be eligible for
temporary room and board and support services while . . .
mak[ing] the transition from homelessness to permanent housing,"
see http://constructinc.org/housing-options/
[https://perma.cc/X858-8Z5W].
6
The defendant testified that he had had one friend who
would take him in occasionally, but he learned the day before
his testimony that the friend had "recently" passed away.
During follow-up questioning, the defendant testified that there
was no other "private apartment" where he could stay during the
applicable time period. He also responded, "No," to the
question whether there was any "private residence other than the
public parks" where he could stay.
7
The defendant testified that he registered to vote using
the address of the gazebo, 334 Main Street, as his "official
residency."
 7

At the time of the trial, the defendant was a sixty-seven

year old unemployed college graduate. He had worked in the

past, but he was not employed at the time he was charged with

the trespassing offenses. The defendant had attempted to obtain

an apartment almost "every week for about seven years."

Although he had money to pay for an apartment depending on the

day, he explained that it was very difficult to find an

apartment in Great Barrington because of the upfront fees.

Accordingly, he was unable to obtain an apartment. He was aware

of a homeless shelter in Pittsfield, but he did not consider

renting lodging or staying at a homeless shelter outside of

Great Barrington. He testified, "I was born here and I intend

to stay here." He does not have a driver's license.

Discussion. 1. Necessity defense. The defendant claims

that the judge erroneously denied his request for a jury

instruction on the defense of necessity and that he improperly

excluded evidence relevant to the defense. The common-law

defense of necessity "exonerates one who commits a crime under

the 'pressure of circumstances' if the harm that would have

resulted from compliance with the law . . . exceeds the harm

actually resulting from the defendant's violation of the law."

Commonwealth v. Kendall, 451 Mass. 10, 13 (2008), quoting

Commonwealth v. Hood, 389 Mass. 581, 590 (1983). As such, the

necessity defense may excuse unlawful conduct "where the value
 8

protected by the law is, as a matter of public policy, eclipsed

by a superseding value . . . ." Kendall, supra, quoting Hood,

supra.

For a defendant to be entitled to a necessity defense

instruction, he or she must present "some evidence on each of

the four underlying conditions of the defense," Kendall, 451

Mass. at 14: "(1) a clear and imminent danger, not one which is

debatable or speculative"; (2) [a reasonable expectation that

his or her action] will be effective as the direct cause of

abating the danger; (3) there is [no] legal alternative which

will be effective in abating the danger; and (4) the Legislature

has not acted to preclude the defense by a clear and deliberate

choice regarding the values at issue." Id. at 13-14, quoting

Hood, 389 Mass. at 591. If the defendant satisfies these

foundational conditions, "the burden is on the Commonwealth to

prove beyond a reasonable doubt the absence of necessity."

Commonwealth v. Iglesia, 403 Mass. 132, 134 (1988).

The judge focused only on the third element in his denial

of the defendant's request for a necessity defense instruction

at the close of all the evidence. The judge ruled that the

defendant had other available legal alternatives, "motels, and

hotels, the police station," and that the evidence was lacking

on the defendant's inability to "rent a hotel room on these

isolated evenings." We conclude that the judge erred in ruling
 9

that the defendant failed to meet his burden to provide some

evidence that showed the lack of an available legal alternative

to the trespasses.

a. Clear and imminent danger. Before we address the third

element, we review the first element, "clear and imminent

danger," because the Commonwealth contends that the defendant

failed to meet the foundational requirement for this element as

to the seventh offense, which occurred on June 10, 2014.8

There appears to be little question that the weather

conditions on the dates of the offenses in February and March

presented a "clear and imminent danger" to a homeless person.9

The temperatures on the dates of the offenses were not admitted

at trial, but the weather on the February and March dates was

described as "cold," "really cold," and "very cold." Moreover,

the timing of each of those incidents, in the early morning or

late evening hours when the defendant was either sleeping or

lying down, suggests the dangerousness of the circumstances

8
The second and fourth elements of the necessity defense
are not contested.
9
Citing a report of the National Coalition for the
Homeless, Winter Homelessness Services: Bringing our Neighbors
in from the Cold, at 15 (Jan. 2010), the amici assert that
homeless people routinely face life-threatening conditions in
the winter, noting that "life-threatening cases of hypothermia
do not require extreme temperatures; indeed, they often occur
when the ambient temperature is between [thirty-two] degrees
Fahrenheit and [forty] degrees Fahrenheit."
 10

where sleeping may place one in the same position for an

extended period and, thus, increases the potential harm from the

weather. See Jones v. Los Angeles, 444 F.3d 1118, 1138 (9th

Cir. 2006) ("involuntary sitting, lying, or sleeping on public

sidewalks . . . is an unavoidable consequence of being human and

homeless without shelter"). See also In re Eichorn, 69 Cal.

App. 4th 382, 389 (1998) ("Sleep is a physiological need, not an

option for humans"). Moreover, the Commonwealth concedes that

the defendant met his burden of demonstrating a "clear and

imminent danger" for these six incidents.10

We agree with the Commonwealth that the defendant did not

meet his burden to show a "clear and imminent danger" for the

incident on June 10, where the evidence showed only that he had

to use the bathroom.11 Accordingly, we do not include the

incident on June 10 in our analysis requirements of the

availability of "legal alternatives" to trespass.

10
The Commonwealth does not contest the "clear and imminent
danger" element as to the April 8 trespass, therefore, we leave
for another day whether, as a matter of law, the reported
temperature, described as "cool," would create a clear and
imminent danger to a homeless person at noon when he was
charged.
11
Trial counsel asked the clerk present at the time the
defendant entered the store whether the defendant said that his
entry was "an emergency and that he really needed . . . to use
the bathroom"; she responded, "No, . . . he didn't say anything
to me." Moreover, the defendant did not request a necessity
defense instruction on this charge, instead requesting the
instruction for the charges that occurred "between February and
let's say April, due to the weather."
 11

b. Availability of lawful alternatives. We have explained

previously that satisfaction of the third element requires a

defendant to demonstrate that he "ma[d]e himself aware of any

available lawful alternatives, 'or show[ed] them to be futile in

the circumstances.'" Kendall, 451 Mass. at 15, quoting

Commonwealth v. Pike, 428 Mass. 393, 401 (1998). On that point,

the defendant must present "some evidence," enough that

"supports at least a reasonable doubt" whether the unlawful

conduct was justified by necessity. Kendall, 451 Mass. at 14.

In other words, the defendant must present enough evidence to

demonstrate at least a reasonable doubt that there were no

effective legal alternatives available before being entitled to

an instruction on the necessity defense. This does not require

a showing that the defendant has exhausted or shown to be futile

all conceivable alternatives, only that a jury could reasonably

find that no alternatives were available. See Kendall, supra at

19 (Cowin, J., dissenting), citing Iglesia, 403 Mass. at 135.

The parties agree that this issue is governed by the

Kendall case, but disagree as to its application. In Kendall,

the defendant had driven while intoxicated to the hospital so

that he could take his girl friend for medical treatment of a

serious head wound. Id. at 11-12. He was charged with

operating a motor vehicle while under the influence of liquor

and requested an instruction on the defense of necessity because
 12

he and his girl friend did not have telephones from which they

could call 911. Id. at 12. A majority of this court affirmed

the judge's decision to deny the defendant's request because the

record was "devoid of evidence that the defendant made any

effort to seek assistance from anyone prior to driving a motor

vehicle while intoxicated." Id. at 15. Further, the evidence

demonstrated that at least one neighbor, who lived about forty

feet from the defendant's residence, was home at the time of the

incident, that there was a fire station approximately one

hundred yards from that neighbor's home, and that the defendant

and his girl friend had just left a Chinese restaurant within

walking distance from the defendant's home. Id. at 11-12.

Accordingly, the defendant had not met his burden to "present at

least some evidence at trial that there were no effective legal

alternatives." Id. at 15. Three dissenting justices disagreed,

concluding that the defendant had met his burden because his

conduct was not unreasonable in light of the "risk of failure"

from the available alternatives; and therefore, weighing the

propriety of defendant's choice should have been given to the

jury. Kendall, 451 Mass. at 16, 18, 19 (Cowin, J., dissenting).

Here, the defendant's evidence was sufficient to meet his

burden under the majority holding of Kendall. In determining

whether there has been sufficient evidence of the foundational

conditions to the necessity defense, "all reasonable inferences
 13

should be resolved in favor of the defendant, and, no matter how

incredible his testimony, that testimony must be treated as

true." Pike, 428 Mass. at 395. Taken in this light, there is

at least "some evidence" that the defendant lacked effective

legal alternatives to trespass during cold days and nights.

Kendall, 451 Mass. at 15. The defendant testified that he

stayed at an outdoor gazebo "[p]retty much" year round, that in

2007 he was told to leave the only local homeless shelter and

had previously been denied entry to the shelter in the middle of

the night following a blizzard, that no other places "want [him]

in . . . their facility," that he was unable to rent an

apartment despite repeated attempts, and that there was nowhere

besides public parks where he could stay. Additionally, the

officer who asked the defendant to leave the Barrington House at

approximately 9:30 P.M. on February 21 testified that the

defendant had to go back outside, and the judge sustained an

objection to defense counsel's question about whether the

officer offered to transport him to any other shelter or

facility. The manager of Castle Street corroborated the

defendant's attempt to rent an apartment by his testimony that

he called police to have the defendant removed from the building

after the defendant "forced his way onto the third floor of the

building, flashing money in hand, demanding I rent him an

apartment."
 14

The Commonwealth argues that the defendant failed to meet

his burden because he presented no evidence that he was unable

to rent an apartment outside of Great Barrington, that he was

unable to gain entry to the Pittsfield shelter, and that he

would still be excluded from the local homeless shelter in 2014.

The Commonwealth's argument is unavailing. We do not require an

actor facing a "clear and imminent danger" to conceptualize all

possible alternatives. Kendall, 451 Mass.at 16 n.5. So long as

the defendant's evidence, taken as true, creates a reasonable

doubt as to the availability of such lawful alternatives, the

defendant satisfies the third element. Contrast Kendall, supra;

Pike, 428 Mass. at 401. The defendant has done so here.12

Additionally, we note that the options proposed by the

Commonwealth do not appear to be effective alternatives on the

record before us. Where the only local homeless shelter had

previously denied the defendant entry at 3 A.M. following a

blizzard and had later told him he had to leave, the law does

not require the defendant to continue to seek shelter there in

order to demonstrate that doing so is futile. Moreover, the

12
Whether a jury would believe that the defendant had no
lawful alternative where he could obtain shelter is not an
appropriate consideration for our analysis. See Commonwealth v.
Robinson, 382 Mass. 189, 200 (1981), quoting Commonwealth v.
Campbell, 352 Mass. 387, 398 (1967) ("[t]he fact that the
evidence may not be of a character to inspire belief does not
authorize the refusal of an instruction based thereon").
 15

defendant's conduct is viewed at the time of the danger, and

actions that the defendant could have taken to find shelter

before the dangerous condition arose do not negate the

conclusion that there were no lawful alternatives available at

the time of his unlawful conduct. See United States v.

Kpomassie, 323 F. Supp. 2d 894, 901 (W.D. Tenn. 2004)

(alternatives not available at time of crime when their

availability was "sufficiently far in the past").

We do not view the requirement that a defendant consider

lawful alternatives as broadly as suggested by the Commonwealth.

Our cases do not require a defendant to rebut every alternative

that is conceivable; rather, a defendant is required to rebut

alternatives that likely would have been considered by a

reasonable person in a similar situation.13 Moreover, we are not

13
As the level of harm that could arise from the unlawful
conduct increases, so does the requirement for considering
lawful alternatives. See Commonwealth v. Hutchins, 410 Mass.
726, 731-732 (1991) (discussing weighing of "competing harms").
We recognize that the defendant's conduct may not have been
appreciated by owners, managers, and residents of the private
buildings in which the defendant sought cover, but there was no
evidence that the defendant's presence did, or had the potential
to, cause physical harm to any persons. Accordingly, the
requirement to consider alternatives may be viewed more
leniently where the potential harm was only property-related
than it would be viewed where the unlawful conduct, as in
Kendall, 451 Mass. at 15, had the potential to harm both persons
and property. The doctrine of necessity has its roots in the
notion that "[t]he law deems the lives of all persons far more
valuable than any property." United States v. Ashton, 24 F.
Cas. 873, 874 (C.C.D. Mass. 1834) (No. 14,470).
 16

prepared to say as a matter of law that a homeless defendant

must seek shelter outside of his or her home town in order to

demonstrate a lack of lawful alternatives.14 Our law does not

permit punishment of the homeless simply for being homeless.15

See Commonwealth v. Canadyan, 458 Mass. 574, 579 (2010) (setting

aside finding that defendant violated condition of probation

where homeless shelters did not have technology required for

compliance). Once the foundational requirements are met, the

necessity defense allows a jury to consider the plight of a

homeless person against any harms caused by a trespass before

determining criminal responsibility.16

14
The viability of this option proposed by the Commonwealth
is hampered for the additional reason that the defendant had no
driver's license or any other apparent method to make the
twenty-mile trek to Pittsfield.
15
As of 2014, Massachusetts had the fifth highest number of
homeless people in the United States. 2014 Annual Homeless
Assessment Report to Congress, Office of Community Planning and
Development, U.S. Dep't of Hous. and Urban Dev., Part 1, at 8
(Oct. 2014). A single male, such as the defendant in this case,
is without emergency shelter options granted by law to other
residents of Massachusetts. See G. L. c. 23B, § 30 ("the
[Department of Housing and Community Development] shall
administer a program of emergency housing assistance to needy
families with children and pregnant wom[e]n with no other
children").
16
Allowing a defendant to defend his trespassing charges by
claiming necessity will not, of course, condone all illegal
trespass by homeless persons. It simply allows a jury of peers
to weigh the "competing harms" to determine criminal
responsibility. See Hutchins, 410 Mass. at 730. In Hutchins,
this court reviewed different circumstances where the balance of
 17

Accordingly, in the circumstances of this case, we conclude

that the judge erred in denying the defendant's request for an

instruction on the defense of necessity. As the defendant

satisfied the foundational elements entitling him to the

defense, the judge's failure to instruct the jury about the

defendant's principal defense requires a new trial. See

Commonwealth v. Lapage, 435 Mass. 480, 486 (2001) (ordering new

trial after judge erred in omitting instruction on principal

defense). We therefore vacate the defendant's convictions of

the charges occurring in February, March, and April, 2014.

c. Exclusion of evidence relevant to necessity defense.

Because it is likely to arise at a retrial, we address the

defendant's argument that the judge infringed on his ability to

demonstrate the foundational elements of the necessity defense

where the judge limited the scope of his questioning on

harms was considered. Id. at 731-732, discussing Commonwealth
v. Thurber, 383 Mass. 328 (1981), and Commonwealth v. Iglesia,
403 Mass. 132 (1988). Specifically, the court noted that a
prison escape would likely be justified where a prisoner was in
imminent danger at the prison and submitted himself directly to
authorities after escape or where an individual who was
unlawfully carrying a firearm would likely be justified where
the carrier "wrested the gun" from an attacker and immediately
went to the police station. Id. Here, whether a homeless
person's trespass in a privately-owned building where he
previously had been barred from entry is a greater or lesser
harm than the intrusion suffered by the owner and occupiers of
the building is a question properly decided by a jury where the
defendant met the foundational elements for the necessity
defense. Iglesia, supra at 135 (jury instructed on whether
defendant made "better choice" by acting illegally).
 18

relevancy grounds. Specifically, the judge ruled as

"irrelevant" questions by defense counsel during cross-

examination that related to whether the defendant was asleep or

intoxicated when trespassing.17 Additionally, the judge

prohibited counsel from asking officers who responded to the

trespass calls whether they offered the defendant transportation

to a shelter. "Evidence is relevant if it renders the desired

inference more probable than it would be without the evidence."

Poirier v. Plymouth, 374 Mass. 206, 210 (1978), citing Green v.

Richmond, 369 Mass. 47, 59 (1975). Relevant evidence may be

admissible if it "tends to establish the issue" or "constitutes

a link in the chain of proof." Poirier, supra, quoting

Commonwealth v. Abbott, 130 Mass. 472, 473 (1881). Here, that

evidence would be anything that tends to establish any of the

four elements of the necessity defense. We conclude that the

questions set forth above speak to the presence of a clear and

17
The defendant contested, on this same ground, several
other evidentiary rulings where the judge limited inquiry. For
example, the judge concluded that the defendant's attempt to
introduce evidence that one of the tenants may have given him
permission to stay in the common areas of the building was
irrelevant, but that finding also was predicated on the
defendant's failure to establish that anyone had authority to do
so. Several objections to the defendant's testimony also were
sustained where the defendant was nonresponsive and testifying
in a narrative. Additionally, the judge found questions about
how the defendant arrived at court that day to be irrelevant,
but did allow testimony that he did not have a driver's license.
We do not discern any error in these rulings on the record
before us.
 19

imminent danger, the effectiveness of the defendant's conduct in

abating that danger, or the availability of alternatives, and

are therefore relevant.

2. Bias. The defendant argues that the judge improperly

excluded evidence relevant to bias, depriving him of his right

to present a full defense under art. 12 of the Massachusetts

Declaration of Rights. Specifically, the defendant argues that

the judge erred in limiting his cross-examination of the

property manager for the Barrington House and the owner of SoCo

Creamery where trial counsel's questions were designed to show

bias against him and a potentially illegitimate ground on which

the no trespass orders were based. We address the issues

relating to the witness for Barrington House because they are

likely to arise at retrial, and to the witness for SoCo Creamery

because we have not vacated the defendant's conviction of the

June 10 charge.

As to the property manager for the Barrington House, the

defendant claims error in the judge's rulings sustaining the

Commonwealth's objections to the following questions: whether

the defendant was a "disruption with . . . tenants," whether his

presence was "annoying to [her] as a property manager," and

whether he was "trespassed . . . basically because he's on the

property itself." As to the owner of SoCo Creamery, the

defendant argues that the judge erroneously prohibited counsel
 20

from asking the owner whether he had "expressed a strong opinion

that [he] fe[lt] that [the defendant] has no respect for any

businesses in town" and whether the defendant had "become a

nuisance in your eyes to your business." The prosecutor did not

object on any stated ground, the judge did not express his

reasons for sustaining the objections, and defense counsel did

not directly respond to the objections.

"The right of a criminal defendant to cross-examine a

prosecution witness to show the witness's bias, and hence to

challenge the witness's credibility, is well established in the

common law, in the United States Constitution," and in art. 12

of the Massachusetts Declaration of Rights. Commonwealth v. Tam

Bui, 419 Mass. 392, 400, cert. denied, 516 U.S. 861 (1995). A

judge has "no discretion to bar all inquiry into the subject" of

bias where the defendant demonstrates there is such a

possibility. Id. at 400. The defendant must, however, "make a

'plausible showing' of alleged bias, with a factual basis for

support." Commonwealth v. Sealy, 467 Mass. 617, 624 (2014),

quoting Tam Bui, supra at 401. If the defendant fails to do so,

the judge has discretion to exclude the evidence. Sealy, supra.

The defendant made no showing at trial of the alleged bias

and argues on appeal that a per se bias exists against homeless

persons, which calls into question the legitimacy of the no

trespass orders. Neither witness testified to the grounds for
 21

obtaining the no trespass orders for Barrington House and SoCo

Creamery or about any details surrounding the charged conduct.18

Weighed against the actual testimony provided by these two

witnesses, there was no error in excluding this line of

questioning. Where the witnesses did not provide details about

the basis for the no trespass orders, the legitimacy of the

orders was not a subject of their testimony and would not have

been affected by any claimed bias.

3. Prosecutor's closing argument. The prosecutor stated

in his closing argument that the defendant "testified that he

was at the Construct up until the first week of March before

these incidents occur, before then on his own testimony he was

at the Construct." The defendant, however, testified that he

stayed at the Construct in 2007, not 2014. The defendant argues

on appeal that this misstatement was prejudicial to his argument

that he sought shelter during the cold out of necessity.

Because we assume that this misstatement will not occur at

retrial and only affects the convictions that we have vacated,

we do not discuss the claim further.

4. April 8 incident. The defendant argues that the judge

erred in denying his motion for a required finding of not guilty

18
The no trespass orders for the Barrington House and SoCo
Creamery were authenticated and introduced during the testimony
of the two witnesses.
 22

on the charge stemming from his presence at Barrington House on

April 8. Specifically, he argues that his presence in the

publicly accessible common areas of the building during business

hours is an insufficient basis on which he could be convicted of

trespassing.

The criminal trespass statute, G. L. c. 266, § 120,

provides in relevant part, "Whoever, without right enters or

remains in or upon the dwelling house, [or] buildings . . . of

another . . . after having been forbidden so to do by the person

who has lawful control of said premises . . . shall be

punished." The defendant argues that a guilty verdict requires

loitering or lingering, and because the record fails to

establish either, he must be acquitted of the charge. We

disagree. The criminal trespass statute does not require this

extra element that the defendant seeks to include.

The defendant's reliance on Commonwealth v. Richardson, 313

Mass. 632 (1943), is unavailing. In Richardson, the defendants,

Jehovah's Witnesses, were charged with trespass based on their

presence in the common area of an apartment building, right

after they had been directly told that they were prohibited from

doing so. We concluded that the defendants had an implied

license to use the common areas of the building to contact

tenants even without "any proof of direct authority"; and
 23

therefore, the defendant's "entry" was lawful.19 Id. at 639-640.

The facts of this case are significantly different than those in

Richardson. Here, it is uncontested that persons with authority

had banned the defendant from the Barrington House prior to any

of the charged entries. Accordingly, any license to enter the

common areas that may have been implied was revoked by the no

trespass order. See Hood, 389 Mass. at 590 ("Even if

[defendants] had an implied license to enter based on

Richardson, they had no right to remain after those with lawful

control of the property asked them to leave").

The judge did not err in denying the defendant's motion for

a required finding of not guilty.

5. The defendant's Moffett briefs. The defendant, in what

he characterizes as briefs filed pursuant to Commonwealth v.

Moffett, 383 Mass. 201 (1981), raises several claims for our

review. We have reviewed these issues and conclude that they do

not merit relief.

6. Conclusion. Because we conclude that the judge erred

in denying the defendant's request for a jury instruction on the

defense of necessity for the trespassing charges that occurred

in February, March, and April, 2014, we vacate those six

19
In Commonwealth v. Richardson, 313 Mass. 632, 634-635
(1943), we noted that G. L. c. 266, § 120 (Ter. Ed.), prohibits
entry and remaining on a property without right, but the
defendant had been charged only with unlawful entry.
 24

convictions and remand for a new trial. We affirm the

conviction stemming from conduct that occurred on June 10, 2014.

So ordered.