Commonwealth v. Rudy D. Ryan.

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

23-P-893

COMMONWEALTH

vs.

RUDY D. RYAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A District Court jury convicted the defendant of assault

and battery. 1 On appeal the defendant principally argues that

the trial judge erred by prohibiting defense counsel from cross-

examining a witness about her potential bias and motive to lie,

in violation of the defendant's rights to confrontation and to

present a defense. We agree and thus vacate the conviction.

Background. On March 5, 2020, Rebecca, Donna, and Theodore

Barboza, all adult siblings, 2 and close family friend Kristen

Kenney were at Rebecca's double-decker house in Brockton. The

1The jury acquitted the defendant of malicious damage to a
motor vehicle.

2Because the siblings share a last name, we will refer to
them by their first names.
defendant, Rebecca's son, lived on the first floor of the

building. Rebecca and Donna were in the process of putting the

defendant's possessions in trash bags because Rebecca was

"trying to get [the defendant] out of the house." Later that

night the defendant arrived at the property.

The witnesses differed on what happened next. Donna, the

defendant's aunt, testified that she, Rebecca, and Theodore were

at the front doorway when the defendant arrived looking angry. 3

The defendant and Rebecca argued "back and forth" about whether

he could enter the building. The argument escalated, and the

defendant "snatched [Theodore] off the porch" and threw him on

top of Kenney's car. The defendant and Theodore rolled off the

car and were "on the ground, tussling," when the defendant

"smash[ed] [Theodore's] face into the concrete."

Kenney testified that she was with Theodore on the second

floor of the building when they saw the defendant arrive looking

"very angry." They ran downstairs, and, as Theodore opened the

front door, the defendant immediately "grabbed Theodore by his

neck and threw him off the stairs into [Kenney's] vehicle."

3 It is unclear from Donna's testimony whether Kenney was
also there.

2
According to Kenney the defendant did not argue beforehand with

Rebecca because she "wasn't even in the area yet." 4

The defendant testified in his own defense that, when he

arrived, Theodore was blocking him from entering his apartment.

The defendant remained calm while Theodore and Kenney argued

with him about whether he could enter. During that exchange

Theodore "shoved" the defendant. The defendant tried again to

enter the apartment, but Theodore grabbed him by the lower waist

and shoved him again, this time into Kenney's car. The

defendant touched Theodore only "to push him off of [himself]."

Prior to trial defense counsel made an oral motion to

introduce a certified docket from a criminal case showing that

Theodore was on probation at the time of the incident and that

his probation was due to end within a week. Defense counsel

argued that the certified docket was relevant to show that

Theodore's "family [was] protecting him" from a probation

violation. The judge responded, "I don't think you need the

record for that. You can ask questions relative to it, but I

don't . . . know how you get [the record] in." When defense

counsel clarified that she intended to "bring out" whether the

witnesses were "aware [Theodore was] on probation," the

prosecutor replied that "the docket alone" would be prejudicial

4 The Commonwealth summonsed Theodore and identified him on
its potential witness list, but he did not appear at trial.

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"if [defense counsel is] not able to elicit any awareness from

the two witnesses from the Commonwealth." The judge deferred

ruling on the admissibility of the certified docket until she

heard the testimony.

During her ensuing cross-examination of Donna, defense

counsel asked, "And you are aware that [Theodore] was on

probation at the time?" The prosecutor objected without stating

a reason. Despite her earlier ruling that defense counsel could

ask the question, the judge sustained the objection, struck the

question, and instructed the jury to "not even consider what

that answer might have been."

At the close of the Commonwealth's evidence, defense

counsel sought again to admit the certified docket from

Theodore's criminal case. The prosecutor objected, this time on

the ground "that there was no testimony elicited from any of the

witnesses regarding the probation status, regarding any

potential bias or motivations for the witnesses allegedly to

have been . . . fabricating their stories to protect [Theodore]

who was on probation." The judge agreed with this reasoning,

telling defense counsel, "[Y]ou didn't even lay a foundation

. . . to show motive or bias or anything on behalf of any of the

witnesses. You also didn't ask any of the witnesses if they

were aware that [Theodore] was . . . on probation at all." When

defense counsel pointed out that she did ask Donna that question

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and that it was relevant to whether she had a motive to lie, the

judge stated, "I think it's a complete stretch. And I think

that wasn't developed or fleshed out at all." The judge then

denied the motion to introduce the certified docket and

instructed defense counsel "not to make any reference to it in

. . . closing argument at all."

Discussion. The Sixth Amendment to the United States

Constitution and art. 12 of the Massachusetts Declaration of

Rights guarantee a criminal defendant's right to present a

defense and to confront the witnesses against him through cross-

examination. See Commonwealth v. Jacques, 494 Mass. 739, 745-

746 (2024). Because these rights are "so closely linked" in

this case, we consider "both under the more specific right to

cross-examine." Commonwealth v. Vardinski, 438 Mass. 444, 450

(2003).

A judge has broad discretion "to direct the course of a

trial," which "extends to limiting and otherwise controlling

cross-examination." Vardinski, 438 Mass. at 451. But "that

discretion must be exercised with great care" in criminal cases

"when the basis for a defendant's proposed cross-examination is

the bias or prejudice of the witness." Commonwealth v. Kindell,

84 Mass. App. Ct. 183, 186 (2013). "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

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subject.'" Id., quoting Commonwealth v. Tam Bui, 419 Mass. 392,

400 (1995), cert. denied, 516 U.S. 861 (1995).

To determine whether the judge unreasonably limited cross-

examination, "we weigh the materiality of the witness's direct

testimony and the degree of the restriction on cross-

examination" (citation omitted). Jacques, 494 Mass. at 746.

Here, Donna was an eyewitness to the incident, and one of only

two prosecution witnesses. Her direct testimony was the

strongest evidence that the defendant committed assault and

battery, and the jury could have convicted the defendant based

on her testimony alone. It is thus plain that Donna's

"testimony, and therefore [her] credibility," were material and

critical to the Commonwealth's case. Commonwealth v. Koulouris,

406 Mass. 281, 285 (1989).

On the other side of the balance, the restriction on cross-

examination was substantial. The judge prohibited all inquiry

into the possibility that Donna had a motive to lie about the

incident to protect her brother Theodore from being found in

violation of his probation. The judge's ruling "kept from the

jury facts central to assessing [Donna's] credibility" and

violated the defendant's right to cross-examine. Jacques, 494

Mass. at 747. See Koulouris, 406 Mass. at 285 ("Because bias is

intimately related to credibility, a defendant has the right to

cross-examine a prosecution witness in order to reveal bias");

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Commonwealth v. Aguiar, 400 Mass. 508, 513 (1987) ("A defendant

has the right to bring to a jury's attention any circumstance

which may materially affect the testimony of an adverse witness

which might lead the jury to find that the witness is under an

influence to prevaricate" [quotations and citation omitted]).

Cf. Davis v. Alaska, 415 U.S. 308, 317-318 (1974) ("The claim of

bias which the defense sought to develop was admissible to

afford a basis for an inference of undue pressure because of

[prosecution witness's] vulnerable status as a probationer").

We are unpersuaded by the Commonwealth's contention that

there was no constitutional violation because defense counsel

was able to cross-examine Donna about other possible sources of

bias, including that she had a close relationship with Theodore.

That defense counsel was permitted cross-examination on other

topics did not cure the error of barring all inquiry into

whether Donna had a motive to protect her brother because of his

probation status. See Davis, 415 U.S. at 318 (although some

cross-examination on bias was permitted, it was not "adequate to

develop the issue of bias properly to the jury").

We are likewise unpersuaded by the Commonwealth's

contention that the restriction on cross-examination was proper

because "Donna's knowledge of [Theodore's] probation and the

possible effect of that knowledge was too tenuous in nature."

As an initial matter, the record shows that the judge did not

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rely on this rationale in her pretrial ruling. To the contrary,

the judge told defense counsel that she could "ask questions

relative to" Theodore's probation status; the judge did not say

that the theory was tenuous and did not require defense counsel

(or give her the opportunity) to make a "plausible showing that

the circumstances existed on which the alleged bias [was]

based." Tam Bui, 419 Mass. at 401. It is unclear why the judge

then sustained the prosecutor's objection when defense counsel

tried to ask Donna the question. In any event, we agree with

the defendant that it is plausible that Donna would have known

that her brother, with whom she was close, had a criminal record

and was on probation and that this might give her a motive to

lie. Cf. Commonwealth v. Henson, 394 Mass. 584, 587 (1985)

("The possibility that a prosecution witness is hoping for

favorable treatment on a pending criminal charge is sufficient

to justify inquiry concerning bias, even if the Commonwealth has

offered no inducements to the witness"). The defendant

therefore had the right to explore this topic through cross-

examination. See Aguiar, 400 Mass. at 514; Kindell, 84 Mass.

App. Ct. at 187.

Because the error was preserved and is of constitutional

dimension, the Commonwealth "bears the burden of establishing

that the error was harmless." Vardinski, 438 Mass. at 452. In

deciding this question, we consider "the importance of the

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witness'[s] 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." Jacques, 494 Mass. at 748, quoting

Vardinski, supra. Here, as discussed above, Donna's testimony

was critical to the Commonwealth's case. Moreover, although

Kenney corroborated Donna's testimony that the defendant was the

aggressor, Kenney did not see what happened after the defendant

and Theodore rolled off the car, and her testimony differed from

Donna's in material respects, including whether the fight was

preceded by an argument between the defendant and his mother.

See Jacques, supra (error in restricting cross-examination of

victim not harmless even though another witness's "independent

testimony bolstered the Commonwealth's case," where that

"testimony did not corroborate any of the specific details of

the alleged abuse"). The jury also acquitted the defendant on

one of the charges, suggesting that "the evidence was not

overwhelming." Id. at 749. For these reasons we conclude that

the restriction on cross-examination was not harmless and that

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the defendant is entitled to a new trial. 5

Judgment vacated.

Verdict set aside.

By the Court (Blake, C.J.,
Shin & Hand, JJ. 6),

Clerk

Entered: February 19, 2025.

5 We need not resolve the remaining issues raised by the
defendant because they are unlikely to arise again, at least in
their current form, at any retrial. We note briefly that the
record does not support the defendant's assertion that the judge
prevented him from testifying about his injured back. The judge
struck some testimony that was nonresponsive, irrelevant, or
hearsay, but otherwise appropriately allowed the defendant to
testify about his injury.

6 The panelists are listed in order of seniority.

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