Commonwealth v. Cindy M. King.

• Court: Massachusetts Appeals Court
• Decided: May 11, 2023
• Docket: 22-P-0894
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-894

COMMONWEALTH

vs.

CINDY M. KING.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Cindy M. King, was convicted after a

District Court jury trial of assault and battery on a family or

household member, G. L. c. 265, § 13M (a), and four counts of

witness intimidation, G. L. c. 268, § 13B. The defendant now

appeals from her convictions as well as the denial of her motion

for a new trial. We conclude that the judge acted within his

discretion in excluding certain evidence of police bias where

defense counsel failed to show how police disciplinary

proceedings were particularly connected to the defendant and

where there was other evidence of police bias before the jury.

We further conclude that defense counsel's failure to make an

offer of proof in this regard, failure to present additional

evidence of police bias, and failure to impeach the victim with video footage from the defendant's Ring Doorbell1 did not

constitute ineffective assistance of counsel. Accordingly, we

affirm.

1. Exclusion of evidence of police bias. "A criminal

defendant has the constitutional right to cross-examine a

prosecution witness to show that the witness is biased."

Commonwealth v. Johnson, 431 Mass. 535, 538 (2000). This right,

however, "is not absolute." Commonwealth v. Walker, 438 Mass.

246, 253 (2002). "Although a trial judge has discretion to

limit cross-examination when necessary, 'he or she has no

discretion to prohibit all inquiry into [a subject that could

show bias or prejudice on the part of the witness].'"

Commonwealth v. Magdalenski, 471 Mass. 1019, 1019 (2015),

quoting Commonwealth v. Tam Bui, 419 Mass. 392, 400, cert.

denied, 516 U.S. 861 (1995). "Determining whether the evidence

demonstrates bias . . . falls within the discretion of the trial

judge." Commonwealth v. Jones, 478 Mass. 65, 73 (2017), quoting

Commonwealth v. LaVelle, 414 Mass. 146, 153 (1993).

On appeal, "[w]e review a judge's evidentiary rulings for

an abuse of discretion." Commonwealth v. Andre, 484 Mass. 403,

414 (2020). "We will conclude that there has been an abuse of

discretion only if the judge has 'made "a clear error of

1 Ring Doorbell is "one brand of doorbell security camera[s]." United States v. Moore-Bush, 36 F.4th 320, 372 (1st Cir. 2022).

2 judgment in weighing" the factors relevant to the decision,

. . . such that the decision falls outside the range of

reasonable alternatives.'" Commonwealth v. Hammond, 477 Mass.

499, 505 (2017), quoting L.L. v. Commonwealth, 470 Mass. 169,

185 n.27 (2014).

Here, the judge acted within his discretion in excluding

certain evidence of police bias based on the information

provided to him. See Commonwealth v. Meas, 467 Mass. 434, 450,

cert. denied, 574 U.S. 858 (2014) ("the judge did not abuse his

discretion in precluding inquiry concerning possible bias"). On

cross-examination, defense counsel asked Officer David Phillips

and Lieutenant Mark Giancotti whether they had ever been subject

to disciplinary proceedings. Before either witness could

answer, the judge ruled sua sponte, "That's excluded." After

the judge prevented Lieutenant Giancotti from answering, he

allowed defense counsel to be heard at sidebar.2 Defense counsel

represented that the witness would testify that "[h]e was

subject to disciplinary actions after a public hearing, and he

was suspended for five days for untruthfulness." The judge

ruled that he was excluding inquiry into Lieutenant Giancotti's

disciplinary record to avoid getting into "what a board may have

2 Neither party requested to be heard at sidebar or made an offer of proof when the judge prevented Officer Phillips from testifying.

3 found about him or may not have found" but allowed defense

counsel to elicit testimony regarding animosity between the

police and the Board of Selectmen (board), of which the

defendant was a member at the time of the incident.

At no point during their testimony did defense counsel

explain why or how Officer Phillips's and Lieutenant Giancotti's

involvement in disciplinary proceedings were connected to the

defendant. Cf. Commonwealth v. Drew, 447 Mass. 635, 648 (2006),

cert. denied, 550 U.S. 943 (2007) ("Counsel made an offer of

proof as to what the witness would say; and he stated his

reasons for offering the testimony"). Without an offer of

proof, the judge would have no reason to know of any potential

bias harbored against the defendant. See Commonwealth v.

Cassidy, 470 Mass. 201, 212-213 (2014) (no abuse of discretion

in preventing "the defendant from asking Trooper Cherven whether

Kelly Croce had told police that somebody named Scotty had

warned her that something might happen. There was no proffer

that Scotty's statement had anything to do with the victim's

death" [footnote omitted]).

Moreover, the judge did not "'bar all inquiry' . . . into

the possibility of bias." Commonwealth v. Mora, 82 Mass. App.

Ct. 575, 579-580 (2012), quoting Commonwealth v. Avalos, 454

Mass. 1, 7 (2009) (no abuse of discretion in limiting cross-

examination where defense counsel was permitted to elicit

4 testimony concerning possible bias). At trial, Lieutenant

Giancotti testified that "[t]here were some issues" between the

police and the board, and Officer Michael Marchand testified

that there was a fair amount of animosity between the police and

the board. Later, the defendant testified that she was familiar

with the police officers in the case and that she was involved

in police disciplinary actions while serving on the board.

Throughout trial the defendant testified to animosity between

the police and the board. Given the testimony elicited at

trial, "[i]t [was] apparent that the judge was not precluding

'all inquiry' into the question of bias." Commonwealth v.

Ahart, 464 Mass. 437, 441 (2013), quoting Tam Bui, 419 Mass. at

400. Accordingly, the judge was within his discretion in

excluding certain evidence of police bias. See Commonwealth v.

Sealy, 467 Mass. 617, 624-625 (2014), quoting Avalos, 454 Mass.

at 8 (no abuse of discretion where "evidence of the victim's

motive to lie was 'sufficiently aired'").

2. Ineffective assistance of counsel. We review the

denial of a motion for a new trial for "a significant error of

law or other abuse of discretion." Commonwealth v. Rodriguez-

Nieves, 487 Mass. 171, 176 (2021), quoting Commonwealth v.

Vargas, 475 Mass. 338, 355 (2016). Where, as here, "the motion

judge was also the trial judge, [his] rulings are 'afforded

special deference.'" Commonwealth v. Gaudette, 56 Mass. App.

5 Ct. 494, 503 (2002), quoting Commonwealth v. Hung Tan Vo, 427

Mass. 464, 467 (1998).

"Where a motion for a new trial is based on ineffective

assistance of counsel, the defendant must show that (1) the

'behavior of counsel [fell] measurably below that which might be

expected from an ordinary fallible lawyer' and (2) such failing

'likely deprived the defendant of an otherwise available,

substantial ground of defence.'" Commonwealth v. Tavares, 491

Mass. 362, 365 (2023), quoting Commonwealth v. Saferian, 366

Mass. 89, 96 (1974). "If a defendant challenges the 'tactical

or strategic decisions,' of trial counsel, he must establish

them as 'manifestly unreasonable.'" Commonwealth v. Shanley,

455 Mass. 752, 768 (2010), quoting Commonwealth v. Montanez, 410

Mass. 290, 295 (1991). In assessing whether the defendant was

prejudiced, we have held that "a defendant is entitled to a new

trial 'if we have a serious doubt whether the result of the

trial might have been different had the error not been made.'"

Commonwealth v. Millien, 474 Mass. 417, 432 (2016), quoting

Commonwealth v. Azar, 435 Mass. 675, 685 (2002), S.C., 444 Mass.

72 (2005).

a. Offer of proof. Defense counsel's failure to make an

offer of proof that the defendant was involved in Officer

Phillips's and Lieutenant Giancotti's disciplinary proceedings

to show that they were biased against the defendant did not

6 constitute ineffective assistance of counsel. See Commonwealth

v. Frank, 433 Mass. 185, 194 (2001) (no ineffective assistance

of counsel in failing to make an offer of proof where "nothing

. . . would lead us to conclude that evidence concerning the

defendant's alleged prior blackouts would have made a difference

in the outcome"). Concerning Officer Phillips, there was no

evidence in the record that he knew what happened at the board's

executive session, a closed proceeding that occurred the day

before the incident. Although the defendant attests that she

told her attorney that she voted to initiate an investigation

into Officer Phillips a day before the incident, the "motion

judge was not required to credit any claims . . . in the

defendant's self-serving affidavit." Commonwealth v. Gilbert,

94 Mass. App. Ct. 168, 178 (2018). See Commonwealth v. Vaughn,

471 Mass. 398, 405 (2015), quoting Commonwealth v. Rzepphiewski,

431 Mass. 48, 55 (2000) (judge may discredit "a defendant's

affidavit[] even if nothing in the record directly disputes

[it]").

As to Lieutenant Giancotti, trial counsel's conduct in

failing to make an offer of proof fell "below that which might

be expected from an ordinary fallible lawyer." Commonwealth v.

Lavoie, 464 Mass. 83, 89, cert. denied, 569 U.S. 981 (2013),

quoting Saferian, 366 Mass. at 96. In his affidavit, appellant

counsel attested that the meeting minutes from the board's

7 public hearing were in the file provided by trial counsel.

Given that the defendant expressed at the public board meeting

her disappointment in Lieutenant Giancotti and voted to impose

the recommended punishment for his misconduct over a suggestion

for leniency, which occurred before the incident, there was a

specific reason for Lieutenant Giancotti to be biased against

the defendant.

Although defense counsel should have made an offer of proof

based on the meeting minutes in her file, her failure to do so

did not deprive the defendant of a substantial ground of

defense. See Commonwealth v. Salinger, 76 Mass. App. Ct. 776,

783 (2010) (defendant was not deprived "of an otherwise

substantial ground of defense" where counsel failed to use

records available to him). Three other officers responded to

the scene before Lieutenant Giancotti and interacted more

directly with the defendant. At trial, each of these three

officers testified with minor variation that, as the defendant

was being handcuffed, she repeatedly said, "I'm a Board of

Selectmen member. Wait until Monday, you'll be sorry."

Impeaching just Lieutenant Giancotti's credibility would have

accomplished little. Accordingly, defense counsel's failure to

make an offer of proof did not constitute ineffective assistance

of counsel. See Vargas, 475 Mass. at 360 (no ineffective

8 assistance of counsel where "the evidence he sought to proffer

was within the purview of the jury").

b. Additional evidence of police bias. Defense counsel's

failure to offer additional evidence of police bias did not

constitute ineffective assistance of counsel because the

additional evidence of bias was based solely on the defendant's

self-serving affidavit. See Commonwealth v. Torres, 469 Mass.

398, 403 (2014) (judge evaluates an "affidavit[] submitted in

support of a motion for a new trial . . . in light of factors

pertinent to credibility"). A judge is "not required to accept

as true the assertions in the defendant's affidavit."

Commonwealth v. Leng, 463 Mass. 779, 787 (2012). This is

especially true where, as here, there was no extrinsic evidence

corroborating the defendant's affidavit and the statements in

her affidavit were inconsistent with her trial testimony. See

Commonwealth v. Sparks, 433 Mass. 654, 660, 661 (2001) ("trial

judge properly denied the defendant's motion for a new trial

. . . . [where] her testimony contradicted her affidavit"). The

defendant attested that Officer Marchand was implicated in an

investigation where the police chief was ultimately terminated

by the board for misconduct, and that the board denied Officer

Marchand's grievance for overtime pay. No corroboration of this

claim was offered. At trial, however, the defendant was asked

"what kind of problems [she] had" with the officers, and she

9 testified that "Officer Marchand posted negative things towards

[her] on Facebook" following a 2018 board election where he

stated that he wanted her and other selectmen removed from

office. Accordingly, the motion judge was entitled to

disbelieve the defendant's affidavit. See Commonwealth v.

Alemany, 488 Mass. 499, 519 (2021).

c. Video footage. "Generally, failure to impeach a

witness does not amount to ineffective assistance of counsel."

Commonwealth v. Norris, 483 Mass. 681, 687 (2019), quoting

Commonwealth v. Fisher, 433 Mass. 340, 357 (2001). "Impeachment

of a witness is, by its very nature, fraught with a host of

strategic considerations, to which we will . . . show

deference." Commonwealth v. Lally, 473 Mass. 693, 709 (2016),

quoting Commonwealth v. Hudson, 446 Mass. 709, 715 (2006). Even

if counsel fails to impeach a witness, it will not constitute

ineffective assistance "absent counsel's failure to pursue some

obviously powerful form of impeachment." Commonwealth v. Smith,

456 Mass. 476, 485 (2010), quoting Fisher, supra.

The defendant claims that defense counsel was ineffective

in failing to impeach the victim's testimony with video footage

from her Ring Doorbell.3 First, the defendant claims that

counsel should have used the video to impeach the victim's

3 We have reviewed the videos.

10 testimony that she left her cell phone at home. After reviewing

the video, it is unclear what the victim is holding in her hand.

Even without the video, the victim had already testified that

she received a call from her son before she came home,

demonstrating that she had her cell phone with her.

Second, the defendant claims that the video depicting her

arriving home, which is timestamped 4:39 P.M., would have

impeached the victim's testimony that the defendant arrived home

at approximately 6 P.M., when "it was dark out." Although the

video shows that it was plainly before sundown when the

defendant arrived home, the victim testified that she received a

text message from the defendant at 5:49 P.M., and conceded on

cross-examination that the defendant must have come home much

earlier than that.4 Where the victim "had already been

sufficiently discredited" as to when the defendant arrived home,

there was no need to introduce the videos. Commonwealth v.

Silva, 455 Mass. 503, 528 (2009).

Third, the defendant claims that video depicts that the

outside light was never turned on and that this would have

impeached the victim's testimony that she told her son to "put

the front light on" before she went inside. The defendant also

claims that the video reveals an unexplained twelve-minute time

4 The Commonwealth introduced the text message at trial, which was timestamped 5:49 P.M.

11 gap between when the victim arrived home and when her son

arrived home. Whether the front light was turned on is hard to

discern from the video, but neither that fact nor the timing

between the son's arrival and the victim's arrival were

particularly significant facts. Moreover, trial counsel had

reason not to use the video, which depicted the defendant, whom

the victim testified "[had been] drinking," stumbling up the

ramp to her house immediately after driving a vehicle.

Introducing the video to show that the light was turned on and

that there was a twelve-minute time gap "could have been of only

minimal aid to the jury on the . . . issue of impeachment."

Commonwealth v. Brown, 451 Mass. 200, 214 (2008).

Finally, all of this assumes that the videos in question

were provided to trial counsel. The defendant attested that

before trial she informed her attorney that the surveillance

videos existed and "sent them to her [attorney] via Dropbox."

In contrast, trial counsel attested that she "did not at the

time of trial recall any surveillance videos showing [the

victim] or her son" but did recall "reviewing surveillance

videos that showed police in front of the house." None of the

videos presented to the motion judge (or before us) depict

footage of police in front of the defendant's home. Moreover,

the defendant's version of events that she told trial counsel

was different than what she testified to at trial. Under these

12 circumstances, it was reasonable for the motion judge not to

credit the defendant's account of events. See Commonwealth v.

Sanchez, 476 Mass. 725, 742 (2017) ("motion judge weighed the

competing affidavits" before crediting trial counsel's account).

Accordingly, the judge was within his discretion in denying the

defendant's motion for a new trial based on ineffective

assistance of counsel. See Commonwealth v. Hernandez, 481 Mass.

189, 195, cert. denied, 140 S. Ct. 168 (2019) ("motion judge did

not abuse his discretion in denying the motion for a new

trial").

Judgments affirmed.

Order denying motion for new trial affirmed.

By the Court (Ditkoff, Hand & D'Angelo, JJ.5),

Clerk

Entered: May 11, 2023.

5 The panelists are listed in order of seniority.