COMMONWEALTH vs. GINA KINDELL.

AGNES, J. The defendant, Gina Kindell, was found guilty of the lesser included offense of assault and battery after a trial by

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jury on a complaint charging her with assault and battery by means of a dangerous weapon. She raises several issues on appeal, but only one requires discussion. For the reasons that follow, there must be a new trial because the defendant was deprived of the right to cross-examine the Commonwealth's only witness as to bias.

Background. The Commonwealth's case was based on the testimony of a single witness, James Hubbard, whose stepson Steven Kindell was married to the defendant. The defendant did not testify. In brief, the jury heard Hubbard testify that on the evening of April 21, 2011, he was in a pizza shop across the street from his apartment. He did not see the defendant enter the shop, as his back was toward the entrance. He testified that, without any provocation on his part, the defendant came up to him and began to swear and yell at him. The shop owner asked them to leave. According to Hubbard, when the pair went outside, the defendant put her purse against a nearby fence and, without warning, punched him in the face. He responded by hitting her with an open hand and knocking her to the ground. She got up and lunged at him. He felt something sharp, and when he touched his forearm through his winter coat he felt and saw blood. Hubbard also testified that he saw an ice pick in the defendant's hand. He took out his cellular telephone to call the police, but it fell to the ground. He testified that as he tried to pick it up, the defendant struck him five or six more times with the ice pick. When Hubbard said he was going to call the police, the defendant ran away. Hubbard was taken to the hospital where, according to the medical records introduced in evidence, he was treated for two "small pin point superficial puncture [wounds]," one on each forearm. The following day, the parties obtained mutual restraining orders. The defendant was not arrested at the scene. The criminal complaint against the defendant was not sought until May 17, 2011, about three weeks later.

During the consideration of pretrial motions in limine, both the prosecutor and defense counsel made the court aware of a preexisting and hostile relationship between the defendant and the alleged victim. At trial, the defense made an offer of proof (the adequacy of which is not challenged by the Commonwealth), in part indicating the following. At the time of the alleged offense,

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the defendant's husband, Steven Kindell, who is Hubbard's stepson, was serving a term of incarceration as a result of a domestic violence incident in which he assaulted the defendant. The defendant had testified in at least one proceeding related to the assault. [Note 1] Also as a result of the domestic violence, the defendant had two active restraining orders against Steven Kindell at the time of the offense alleged in the case at bar.

While Hubbard was on the stand during the defendant's trial, defense counsel attempted to elicit from him that Steven Kindell was in jail in April of 2011 when the defendant allegedly attacked Hubbard. The judge sustained the Commonwealth's objection. During an ensuing conversation between the attorneys and the judge, without the jury present, defense counsel informed the judge that her client had made her aware that prior to the date of the alleged offense, Hubbard had threatened the defendant in an effort to persuade her not to testify against his stepson in the domestic violence case. Defense counsel told the judge that Hubbard had told the defendant that if she allowed his stepson to remain in jail, "he'd make sure she wound up in jail." Defense counsel informed the judge that she wanted to inquire of Hubbard about this and the tumultuous relationship between the defendant and his stepson in an effort to establish Hubbard's motive to fabricate the charge against the defendant. She proposed to use a certified docket from Steven Kindell's conviction and the restraining orders against him to refresh Hubbard's recollection were he to deny the history between the defendant and her husband.

The judge ruled that defense counsel would not be permitted to question Hubbard about the restraining orders, the history between his stepson and the defendant, or about the fact that his stepson was incarcerated at the time of the alleged offense. Defense counsel explained at length her reasoning that, apart from the restraining orders and the use of any prior criminal convictions, she should be permitted to explore with Hubbard

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his awareness of the relationship between the defendant and Hubbard's stepson and the defendant's role in the stepson's incarceration, in an effort to establish that Hubbard had a motive to lie. [Note 2] The judge ruled that the probative value of such evidence was substantially outweighed by its potential for prejudice and that such evidence would confuse the jury. Ultimately, the judge also ruled it was not relevant. As a result, the only evidence the jury heard about the relationship between the alleged victim and the defendant was a brief statement by Hubbard on direct that they had had "disagreements."

Discussion. 1. Cross-examination as to bias. A judge has discretion to control the scope of cross-examination. See Mass. G. Evid. § 611(a), (b)(1) (2013 ed.). However, in a criminal case, that discretion must be exercised with great care when the basis for a defendant's proposed cross-examination is the bias or prejudice of the witness. See id. § 611(b)(2). "A criminal defendant has the constitutional right [Note 3] to cross-examine a prosecution witness to show bias." Commonwealth v. Noeun Sok, 439 Mass. 428 , 435 (2003). If the defendant demonstrates that "there is a possibility of bias, even a remote one, the judge has no discretion to bar all inquiry into the subject." Commonwealth v. Tam Bui, 419 Mass. 392 , 400, cert. denied, 516

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U.S. 861 (1995). [Note 4] Cross-examination as to bias is of vital importance because the weight that the jury give to the testimony of the witness may depend entirely on their belief that the witness has no motive to lie. See Day v. Stickney, 14 Allen 255 , 258 (1867). When 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. Tam Bui, supra at 401. If a plausible basis is not demonstrated, or the relevance of the proposed evidence is of no more than marginal value to the party conducting the cross-examination, the judge has discretion to exclude the evidence. See id. at 401-402; Commonwealth v. Kartell, 58 Mass. App. Ct. 428 , 433 n.2 (2003), quoting from Crane v. Kentucky, 476 U.S. 683, 689 (1986). [Note 5] Compare Kenney v. Head, 670 F.3d 354, 359 (1st Cir. 2012). In the present case, defense counsel made clear the basis for her proposed cross-examination of the Commonwealth's witness, and the reason why it was directly relevant to the witness's credibility. See Commonwealth v. Martinez, 384 Mass. 377 , 380 (1981). In fact, in this case, the evidence was not only relevant to the credibility of the only witness, it was the entire defense.

2. Weighing probative value against unfair prejudice, confusion of issues, misleadingness to jury. In performing what is often referred to as the § 403 balancing test, see Mass. G. Evid. § 403 (2013 ed.), [Note 6] the measure of prejudice is not whether the evidence simply is adverse to the party against whom it is

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offered. Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 618 (5th Cir. 1977), cert. denied, 435 U.S. 996 (1978). "By design, all evidence is meant to be prejudicial; it is only unfair prejudice which must be avoided." United States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989). "Evidence is unfairly prejudicial only if it has 'an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.' It is unfairly prejudicial if it 'appeals to the jury's sympathies, arouses [their] sense of horror, provokes [their] instinct to punish,' or otherwise 'may cause a jury to base [their] decision on something other than the established propositions in the case.' " Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir. 1980) (citations omitted). Compare Commonwealth v. Avalos, 454 Mass. 1 , 7 (2009) (judge has discretion to limit cross-examination concerning possible bias when further questioning would be redundant, when it would involve only collateral matters, when it would be too speculative, or when it is simply a proxy for proving the bad character of a witness).

In the present case, the judge regarded evidence of Hubbard's feelings toward his stepson and the defendant, including his knowledge that his stepson was incarcerated as a result of the defendant's testimony, either as having no probative value, or only minimal value because it would not shed any light on the facts in dispute at trial, namely, the alleged attack by the defendant against Hubbard on April 21, 2011. However, the credibility of a witness and whether a witness's testimony may be influenced by a bias for or against a party are relevant in every case and are proper subjects for cross-examination. See Commonwealth v. Gagnon, 408 Mass. 185 , 192 (1990). See also Commonwealth v. Buzzell, 79 Mass. App. Ct. 460 , 462 (2011). "[E]vidence of bias is almost never a collateral matter." Commonwealth v. LaVelle, 414 Mass. 146 , 153 (1993). [Note 7] Furthermore, there is no

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reason to believe that the proposed cross-examination would confuse the issues or mislead the jury.

The effect of the judge's ruling was to foreclose all inquiry by defense counsel on cross-examination of Hubbard about his understanding of and feelings about the relationship between his stepson and the defendant which, in the circumstances, could have revealed evidence of his bias and prejudice against the defendant. As a result of such cross-examination, the jury might have received a significantly different impression of Hubbard's credibility. "The evidence that the defendant sought to introduce could show a bias or prejudice on the part of the witness in relation to the defendant. The defendant had a right to have the whole relationship presented to the jury." [Note 8] Commonwealth v. Aguiar, 400 Mass. 508 , 514 (1987). See Olden v. Kentucky, 488 U.S. 227, 231-232 (1988); United States v. Lynn, 856 F.2d 430, 433-434 (1st Cir. 1988).

3. Harmless error analysis. "[T]he exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Davis v. Alaska, 415 U.S. 308, 316-317 (1974). When the error is preserved, as in this case, it is subject to harmless error analysis. Olden v. Kentucky, supra at 232-233. In assessing whether such an error was harmless, we must examine several factors, including "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). See Commonwealth v. Morales, 76 Mass. App. Ct. 663 , 665-667 (2010) (canvassing the Massachusetts cases on harmless error and concluding that "in determining whether a constitutional error was harmless, we ask whether the record establishes beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained" [quotations and citations omitted]).

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In this case, the defense was based entirely on the contention that Hubbard was not credible and the Commonwealth's case depended entirely on persuading the jury to believe the opposite was true. This is not a case in which the matter that defense counsel wished to explore had already been brought to the attention of the jury in sufficient detail. See Commonwealth v. Traylor, 43 Mass. App. Ct. 239 , 242-243 (1997). The rulings that restricted cross-examination "deprived the defendant of an opportunity to present sufficient information to the jury for [them] to make a discriminating appraisal of the complainant's motive to lie." Commonwealth v. Morin, 52 Mass. App. Ct. 780 , 785 (2001), and cases cited. "We cannot say that this information would not have had a material impact on the jury's decision." Ibid.

Judgment reversed.

Verdict set aside.