Commonwealth v. Frederick Foresteire.

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

25-P-316

COMMONWEALTH

vs.

FREDERICK FORESTEIRE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the

defendant, Frederick Foresteire, was convicted of two counts of

indecent assault and battery on a person over fourteen (indecent

assault and battery).1 He argues on appeal that the judge erred

in (1) restricting cross-examination and precluding impeachment

evidence that would have demonstrated the victim's bias, and

(2) giving an unwarranted curative instruction following defense

counsel's closing argument. We affirm.

1The defendant was found not guilty on two counts of
assault and battery as well as a third count of indecent assault
and battery. Two additional counts of indecent assault and
battery were severed from the other charges and are not part of
the present appeal.
Background. The jury could have found the following facts

from the evidence. In 2016, the defendant, who was the

superintendent of schools in Everett, hired the victim to work

in the administration building at the school department. From

the outset of the victim's employment, the defendant "would

always have something to say about what [the victim] was

wearing," and "would parade" her around the administration

building. Rather than use her name, he would call her "Ms.

Argentina." He "would direct [her] to open [her] shirt. He

would direct [her] to lift [her] skirts." On more than fifty

occasions, he called the victim while she was operating the

switchboard and asked her "inappropriate things," such as "what

[she had] done sexually to men," what people had done to her

sexually, what color bra she was wearing, whether she "ever

performed blowjobs," whether she would "ever perform a blowjob

on him," and if she would "allow him to go down on [her]." The

victim refused to answer his questions, only responding "no"

when he would question her. She disclosed the content of the

defendant's calls to one of her coworkers (coworker).

From June 2017 through the end of the victim's employment

with the school department, the defendant grabbed, squeezed, or

touched her "butt" on myriad occasions. The victim did not

consent to any of the touchings, and the defendant's conduct

made her uncomfortable, nervous, and caused her to shake. On

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two of these occasions, the coworker witnessed the defendant put

his hand on the "lower portion" of the victim's buttocks. The

coworker testified that the victim "was almost paralyzed" when

this occurred.

The victim testified that in June of 2017, the defendant

directed her into an office, blocked the doorway, and told her

to pull her shirt down. The victim did not do so, but the

defendant pulled her shirt down, exposing the victim's breast.

The defendant then put his hands behind his back, leaned down,

and put his mouth on her breast. The victim also testified that

in April 2018, the defendant directed her into an office and

again pulled down her shirt and bra and exposed her breasts. At

some point, as a result of the defendant's comments and actions,

the victim changed the way she dressed and began wearing pants,

layering her clothing, wearing "holstered bras," and "just

covering up."

In June of 2018, the victim received a "layoff letter" from

the defendant and stopped working at the school department. In

November 2018, the victim filed a complaint with the

Massachusetts Commission Against Discrimination (MCAD) and filed

an amended complaint in 2019. In or around February 2019, the

victim reported the incidents to the police. She did not

initially report the incidents to the police because the

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defendant "had his hand in everything" and "was almost more

powerful than the mayor."

The defendant contested each of the allegations and most of

the evidence delineated above. The defense focused on

undermining the victim's credibility through extensive cross-

examination and through the testimony of several witnesses

called by the defense who all testified that they never saw the

defendant parade the victim around the office, touch the victim,

or engage in any of the alleged offensive behavior. The

witnesses all testified that they observed no changes to the

victim's behavior or demeanor during the relevant timeframe at

issue. The defendant also testified and denied the allegations.

The jury convicted the defendant of the two counts of

indecent assault and battery that involved the touching of the

victim's buttocks observed by the coworker. The jury found the

defendant not guilty of all other counts, including those

involving the alleged exposing and touching of the victim's

breast.

Discussion. 1. Restrictions on cross-examination. The

defendant contends that the judge impermissibly restricted his

cross-examination of the victim and his examination of defense

witnesses in violation of the Sixth Amendment to the United

States Constitution and art. 12 of the Massachusetts Declaration

of Rights. See Commonwealth v. Grenier, 415 Mass. 680, 686

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(1993) (defendant has "constitutional right to present evidence

of bias through any competent means").

The Sixth Amendment and art. 12 of the Massachusetts

Declaration of Rights provide defendants with an opportunity for

cross-examination; they do not guarantee a "cross-examination

that is effective in whatever way, and to whatever extent, the

defense might wish." Commonwealth v. Cong Duc Le, 444 Mass.

431, 438 (2005), quoting United States v. Owens, 484 U.S. 554,

559 (1988). See Commonwealth v. Edwards, 444 Mass. 526, 535

(2005) ("the right to cross-examine adverse witnesses under art.

12 is not absolute"). Rather, judges have "broad latitude to

direct the course of a trial, and this judicial discretion

extends to limiting and otherwise controlling cross-

examination." Commonwealth v. Vardinski, 438 Mass. 444, 451

(2003). "Those limits are 'based on concerns about . . .

harassment, prejudice, confusion of the issues, the witness's

safety, or interrogation that is repetitive or only marginally

relevant.'" Commonwealth v. Chicas, 481 Mass. 316, 320 (2019),

quoting Commonwealth v. Johnson, 431 Mass. 535, 540 (2000).

"Moreover, a judge has discretion to limit questions that

involve collateral issues and questions where the connection to

the evidence of bias is too speculative." Chicas, supra. A

judge's decision to restrict cross-examination "is not subject

to reversal unless the defendant can show he was prejudiced by

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too narrow a restriction in his cross-examination rights"

(citation omitted). Commonwealth v. Syrafos, 38 Mass. App. Ct.

211, 219 (1995).

In the present case, we discern no abuse of discretion.

The defendant first argues that the judge sustained numerous

objections to defense counsel's cross-examination that was

designed to show that the victim "was motivated to falsely

accuse [the defendant] of misconduct because she needed money."

The defendant claims that absent these limitations on cross-

examination, he could have elicited information that would show

that the victim's predicament was more dire than she had

suggested and "would have supported an inference that she was

desperate for money, suggesting a motive to fabricate her

account of [the defendant's] conduct." The defendant's argument

ignores the extensive and thorough cross-examination of the

victim during which defense counsel elicited, inter alia, that

the victim was having "financial difficulty"; was "severely

financially strapped"; struggled with bills; was behind on her

rent; was behind on her bills in general; was denied in her

attempt to obtain a loan from Everett Credit Union; and had

financial difficulties that predated her filing of the MCAD

complaint. Defense counsel also compelled the victim to

acknowledge that in her affidavit filed in support of her

amended MCAD complaint, she sought money and attorney's fees.

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Put simply, the transcript reveals that defense counsel

conducted a thorough and effective cross-examination of the

victim, and elicited testimony that challenged the victim's

credibility and demonstrated potential bias due to her financial

situation. To the extent that the judge sustained some

objections to certain questions regarding the victim's financial

situation, the rulings were justified based on form, lack of

foundation, or involvement of collateral matters. See Chicas,

481 Mass. at 322.

The defendant next argues that the judge "sustained

objections to whether [the victim] told . . . investigators in

the case that [the defendant] had been responsible for the

denial of her loan." Contrary to this claim, on cross-

examination the victim admitted that she was denied in her

attempt to obtain a loan, was approached by the defendant about

that loan, told investigators that the defendant told her,

"[y]ou help me or I'll help you," and was denied the loan the

next day. From this testimony, the jury could have inferred

that the victim informed investigators of her belief that the

defendant was involved with or responsible for the denial of her

loan. Here again, to the extent that the judge sustained

certain objections to this line of cross-examination, we discern

no abuse of discretion and, in any event, no prejudice. See

Syrafos, 38 Mass. App. Ct. at 219.

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The defendant next argues that the judge limited his

examination of defense witnesses. Specifically, he contends

that "[i]t was critical that five witnesses scattered throughout

the building who saw [the victim] every day . . . did not see

[the defendant] parade [her] around the building," and did not

observe any changes or anything remarkable as to her dress or

demeanor during the time of the alleged assaults. Contrary to

this claim, the record reflects that all five witnesses called

by the defendant testified to the effect that during the entire

period of their employment, they never saw the defendant

"parading [the victim] around," never heard him making

inappropriate comments to her, never noticed her wearing extra

clothing or trying "to be covering up her entire body," and

never noticed any change in her wardrobe or the "way she

dressed."2 We thus discern no abuse of discretion.

2. Curative instruction. Finally, the defendant contends

that the judge abused her discretion in providing a curative

instruction at the end of defense counsel's closing argument.

2 The trial transcript reflects a hard-fought trial during
which defense counsel challenged the credibility of the victim
and other witnesses, elicited testimony that demonstrated
potential bias, called witnesses whose testimony contradicted
that of the victim and other witnesses who testified in the
Commonwealth's case-in-chief, and presented a comprehensive and
strategic defense. Indeed, the jury found the defendant not
guilty on three of the five counts.

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The argument is unavailing. The instruction reminded the jury

that it is their memory, not the memory of the prosecutor or

defense counsel that controls. The instruction also noted that

defense counsel's statements as to "what the law is or is not"

is "something you need to take from [the judge]," and that

statements of defense counsel regarding facts not in evidence

could not be considered. This instruction, provided in response

to, inter alia, defense counsel's description of what

constitutes reasonable doubt, and his statements regarding the

content of witness testimony and other evidence, was an accurate

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statement of law and did not constitute an abuse of discretion.3

Commonwealth v. Souza, 492 Mass. 615, 636 (2023).

Judgments affirmed.

By the Court (Neyman,
D'Angelo & Allen, JJ.4),

Clerk

Entered: February 4, 2026.

3 At oral argument, the defendant's appellate counsel noted
that in response to prosecutorial mistakes in closing argument,
judges often provide general or tepid curative instructions, or
none at all; yet here, the judge gave a specific instruction in
response to the defendant's trial counsel's closing argument.
We of course agree that judges should, in appropriate
circumstances, provide specific curative instructions. See
Commonwealth v. Rodriquez, 49 Mass. App. Ct. 370, 374 (2000)
(noting importance of giving timely curative instruction). In
any event, our decision is limited to the present case, and
here, the judge acted well within her discretion in providing a
brief and timely curative instruction.

4 The panelists are listed in order of seniority.

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