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SJC-11701

            COMMONWEALTH   vs.   CHRISTOPHER G. MAGDALENSKI.


                             May 22, 2015.


Evidence, Cross-examination, Bias, Impeachment of credibility.
     Witness, Cross-examination, Bias, Impeachment.


     After a jury trial in the Northampton Division of the
District Court Department, the defendant, Christopher
Magdalenski, was convicted of one count of assault and battery
in violation of G. L. c. 265, § 13A, against his sister, Bethany
Magdalenski.1 In an unpublished memorandum and order pursuant to
Appeals Court rule 1:28, the Appeals Court affirmed the
conviction. Commonwealth v. Magdalenski, 85 Mass. App. Ct. 1104
(2014). We granted Christopher's application for further
appellate review to address whether the trial judge abused his
discretion in excluding evidence of the Commonwealth witnesses'
alleged bias, prejudice, and motive to prevaricate. We reverse
and remand for a new trial.

     Christopher claims that he did not assault Bethany.
Instead, he alleges that he was the victim of an unprovoked
attack by Bethany's boyfriend, William Graham, an off-duty
Worthington police officer, and that Bethany was accidentally
injured in the process. His principal contention is that
Bethany and Graham fabricated their allegations against him in
order to justify Graham's actions, specifically, that they were
motivated to prevaricate because of Graham's concern that his
own actions would have criminal consequences and professional
consequences for his career as a police officer. The trial
judge, however, precluded Christopher from impeaching Bethany's

     1
       Because the defendant and his sister have the same last
name, we refer to them by their first names.
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and Graham's testimony with an application for a criminal
complaint that was filed at Christopher's behest against Graham
regarding the incident; evidence suggesting that Christopher was
coerced to withdraw the application because of threats and other
statements made essentially by Bethany and Graham; and related
evidence. The trial judge ruled that, because no criminal
charges were pending against Graham, there was no occasion to
consider the application, the circumstances under which it was
withdrawn, or related matters.

     "It is a basic rule that reasonable cross-examination for
the purpose of showing bias and prejudice is a matter of right."
Commonwealth v. Martin, 434 Mass. 1016, 1017 (2001), quoting
Commonwealth v. Martinez, 384 Mass. 377, 380 (1981). 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]" (citation omitted), Commonwealth v. Tam Bui, 419
Mass. 392, 400, cert. denied, 516 U.S. 861 (1995), even where
the possibility of bias is remote, provided that the theory of
bias is not "too tenuous." Id. at 401. See Martin, supra. In
this case, irrespective of whether criminal charges were pending
against Graham at the time of trial, evidence that Bethany and
Graham were aware of the application, that they coerced
Christopher to withdraw his application, that they made false
statements to police officers and others, and that it was Graham
who was the aggressor was relevant to Christopher's theory that
both Bethany and Graham had a motive to prevaricate about the
events in question and were biased and prejudiced against him.
It was error for the judge to prohibit all questioning along
these lines.

     This case is markedly similar to Martin, supra. In that
case, we held that the complainant's knowledge that the
defendant previously applied for a complaint against her was
relevant to show bias, and that "[i]t was error to bar all
inquiry into the complainant's knowledge that the defendant
previously applied for a complaint against her." Id. at 1017.
Although the application for the criminal complaint against
Graham had been withdrawn by the time of trial, the judge should
have permitted inquiry into Christopher's theory that he had
been coerced to do so, not because his allegations were untrue,
but because of threats and false statements made by Bethany and
Graham. See Commonwealth v. Ahearn, 370 Mass. 283, 286 (1976).
As in Ahearn, the trial judge should have allowed Christopher to
pursue this theory through extrinsic evidence and examination of
witnesses because, if the evidence was credited by the jury, it
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would have supported an inference of bias, prejudice, and motive
to prevaricate.

     The defendant should have been permitted to question the
prosecution witnesses, and offer evidence, concerning their
bias, prejudice, and motive to prevaricate. The judgment is
reversed, the verdict is set aside, and the case is remanded for
a new trial.

                                   So ordered.


     Jessica LaClair for the defendant.
     Cynthia M. Von Flatern, Assistant District Attorney, for
the Commonwealth.
