Commonwealth v. Magadini

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SJC-11874
COMMONWEALTH vs. DAVID MAGADINI.
Berkshire. December 7, 2015. - June 23, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Trespass. Necessity. Practice, Criminal, Request for jury
instructions. Evidence, Cross-examination, Relevancy and
materiality, Bias of government witness.
Complaints received and sworn to in the Southern Berkshire
Division of the District Court Department on April 8, April 9,
and July 8, 2014.
The cases were tried before Fredric D. Rutberg, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Joseph N. Schneiderman for the defendant.
Jessie J. Rossman (Matthew Segal with her) for American
Civil Liberties Union of Massachusetts & others.
John Bossé, Assistant District Attorney, for the
Commonwealth.
HINES, J. The defendant, David Magadini, was convicted by
jury on seven counts of criminal trespass, each based on the
2
defendant's presence, in 2014, in privately-owned buildings
where he was the subject of no trespass orders.1 Five incidents
occurred between February and March, the sixth occurred on April
8, and the seventh occurred on June 10. Before trial and during
the charge conference, the defendant requested a jury
instruction on the defense of necessity, asserting that his
conduct was justified as the only lawful alternative for a
homeless person facing the "clear and imminent danger" of
exposure to the elements during periods of extreme outdoor
temperatures. The judge denied the request, concluding that the
defendant had legal alternatives to trespassing available. As
to each conviction, the judge imposed concurrent sentences of
thirty days in a house of correction. A single justice of the
Appeals Court stayed the sentences pending resolution of this
appeal. We granted the defendant's application for direct
appellate review.
On appeal, the defendant asserts the following errors at
trial: (1) denial of his request for an instruction on the
defense of necessity; (2) limitation of his cross-examination of
witnesses; (3) misstatements made by the prosecutor during
closing argument; and (4) denial of his motion for a required
1
The judge allowed the defendant's motion for a required
finding of not guilty on an eighth charge, which was based on
the defendant's presence at the site of the former St. James
Church, located in Great Barrington, on April 19, 2014.
3
finding of not guilty on the charge stemming from the April 8
incident.2 We conclude that the judge erred in denying the
defendant's request for an instruction on the defense of
necessity as to the six trespassing charges related to the
incidents from February through April, 2014,3 and that the error
was prejudicial. Accordingly, we vacate the first six
convictions and remand for a new trial.4 The defendant did not,
however, meet his burden to demonstrate the foundational
requirements for a necessity defense instruction as to the
seventh conviction, stemming from the June 10 trespass.
Therefore, we affirm that conviction as well as the denial of
his motion for a required finding of not guilty for the April 8
incident. We address the defendant's remaining claims, which
relate to issues that may arise at retrial.
Background. We recite the facts the jury could have found,
reserving certain details for our discussion of the specific
2
The defendant, in multiple briefs that he contends are
filed in accordance with Commonwealth v. Moffett, 383 Mass. 201
(1981), raises several new claims and expands on claims made in
his appellate brief.
3
These six charges related to the trespasses by the
defendant on February 20, February 21, March 4, March 6, March
28, and April 8.
4
We acknowledge the amicus brief submitted by the American
Civil Liberties Union of Massachusetts, Committee for Public
Counsel Services, and Massachusetts Association of Criminal
Defense Lawyers in support of the defendant.
4
issues raised. In 2014, the defendant was charged with
trespassing on three properties in Great Barrington --
Barrington House, Castle Street, and SoCo Creamery. Barrington
House is a mixed-use building with several different
restaurants, an enclosed atrium, and apartments above the
businesses. Castle Street is a three-story building with retail
establishments, offices, and apartments. SoCo Creamery is an
ice cream shop. The defendant was barred from each property by
no trespass orders. The owner of the Castle Street building had
the defendant served with a no trespass order in July, 2008; the
manager of Barrington House had the defendant served in June,
2012; and the owner of SoCo Creamery had the defendant served in
January, 2014. All of the no trespass orders were in effect at
the time the charges were brought against the defendant.
Four charges related to the defendant's presence at
Barrington House. On February 21, March 4, and March 6, police
found the defendant lying in a hallway by a heater during the
evening, nighttime, or early morning hours of days described as
"cold" or "very cold." At approximately noon on April 8, a day
described as "cool," police responded to a report and observed
the defendant walking through a common area in the Barrington
House toward the front door. Two charges stemmed from the
defendant's presence at Castle Street, where police had found
the defendant lying on the floor in the lobby next to a heater
5
during periods of cold weather. The first incident occurred
between 8 A.M. and 10 A.M. on February 20, 2014; the defendant
was awake. The second incident occurred at approximately 6:30
A.M. on March 28; the defendant was sleeping. The seventh
charge was based on conduct that occurred on June 10, 2014, when
the defendant entered SoCo Creamery, ignored requests by the
clerk to leave the premises, and used the bathroom for ten to
fifteen minutes. The defendant did not dispute that he violated
all of the trespass orders, focusing his case instead on the
necessity defense in cross-examination and his direct testimony.
The defendant, a lifelong resident of Great Barrington,
became homeless after he moved out of his parents' home in 2004.
His purpose in moving out was to "reorganize." He planned to
return to his parents' home, but he was unable to do so because
the "landlord," who "wanted [the defendant] out" refused to
allow it. After leaving his parents' home, he generally lived
outside year-round, but during the winter months, he tried to
"find a more sheltered area" from the "ice and a snow storm."
During the cold weather, the defendant used blankets, gloves,
and scarves to try to stay warm, but when the weather was "so
severe . . . that [it was] not possible," he would seek shelter
in private buildings.
For a two- to three-month period in the winter of 2007, the
defendant stayed at the local homeless shelter, called the
6
Construct.5 Three days before he began staying there, he had
gone to that shelter at approximately 3 A.M. following a
blizzard. He was refused entry, and he stayed on the porch for
about an hour before being asked to leave. A few days later, he
spoke with someone from the shelter, and he was allowed to stay
for a few months before he was told to leave because of "certain
issues." Therefore, the defendant had no other place to stay in
Great Barrington.6 For a period of "three to four years," he
lived outdoors, first at Stanley Park and later at the outdoor
gazebo behind the Great Barrington Town Hall, where he had been
living at the time of the trespass incidents. He considered the
gazebo his home and registered to vote from that address.7
5
As pointed out in the amicus brief, on its Web site,
Construct advertises "permanent" and "transitional" housing, see
http://constructinc.org/about-us/ [https://perma.cc/5A85-7G9K],
and asserts that persons who "lost" housing "may be eligible for
temporary room and board and support services while . . .
mak[ing] the transition from homelessness to permanent housing,"
see http://constructinc.org/housing-options/
[https://perma.cc/X858-8Z5W].
6
The defendant testified that he had had one friend who
would take him in occasionally, but he learned the day before
his testimony that the friend had "recently" passed away.
During follow-up questioning, the defendant testified that there
was no other "private apartment" where he could stay during the
applicable time period. He also responded, "No," to the
question whether there was any "private residence other than the
public parks" where he could stay.
7
The defendant testified that he registered to vote using
the address of the gazebo, 334 Main Street, as his "official
residency."
7
At the time of the trial, the defendant was a sixty-seven
year old unemployed college graduate. He had worked in the
past, but he was not employed at the time he was charged with
the trespassing offenses. The defendant had attempted to obtain
an apartment almost "every week for about seven years."
Although he had money to pay for an apartment depending on the
day, he explained that it was very difficult to find an
apartment in Great Barrington because of the upfront fees.
Accordingly, he was unable to obtain an apartment. He was aware
of a homeless shelter in Pittsfield, but he did not consider
renting lodging or staying at a homeless shelter outside of
Great Barrington. He testified, "I was born here and I intend
to stay here." He does not have a driver's license.
Discussion. 1. Necessity defense. The defendant claims
that the judge erroneously denied his request for a jury
instruction on the defense of necessity and that he improperly
excluded evidence relevant to the defense. The common-law
defense of necessity "exonerates one who commits a crime under
the 'pressure of circumstances' if the harm that would have
resulted from compliance with the law . . . exceeds the harm
actually resulting from the defendant's violation of the law."
Commonwealth v. Kendall, 451 Mass. 10, 13 (2008), quoting
Commonwealth v. Hood, 389 Mass. 581, 590 (1983). As such, the
necessity defense may excuse unlawful conduct "where the value
8
protected by the law is, as a matter of public policy, eclipsed
by a superseding value . . . ." Kendall, supra, quoting Hood,
supra.
For a defendant to be entitled to a necessity defense
instruction, he or she must present "some evidence on each of
the four underlying conditions of the defense," Kendall, 451
Mass. at 14: "(1) a clear and imminent danger, not one which is
debatable or speculative"; (2) [a reasonable expectation that
his or her action] will be effective as the direct cause of
abating the danger; (3) there is [no] legal alternative which
will be effective in abating the danger; and (4) the Legislature
has not acted to preclude the defense by a clear and deliberate
choice regarding the values at issue." Id. at 13-14, quoting
Hood, 389 Mass. at 591. If the defendant satisfies these
foundational conditions, "the burden is on the Commonwealth to
prove beyond a reasonable doubt the absence of necessity."
Commonwealth v. Iglesia, 403 Mass. 132, 134 (1988).
The judge focused only on the third element in his denial
of the defendant's request for a necessity defense instruction
at the close of all the evidence. The judge ruled that the
defendant had other available legal alternatives, "motels, and
hotels, the police station," and that the evidence was lacking
on the defendant's inability to "rent a hotel room on these
isolated evenings." We conclude that the judge erred in ruling
9
that the defendant failed to meet his burden to provide some
evidence that showed the lack of an available legal alternative
to the trespasses.
a. Clear and imminent danger. Before we address the third
element, we review the first element, "clear and imminent
danger," because the Commonwealth contends that the defendant
failed to meet the foundational requirement for this element as
to the seventh offense, which occurred on June 10, 2014.8
There appears to be little question that the weather
conditions on the dates of the offenses in February and March
presented a "clear and imminent danger" to a homeless person.9
The temperatures on the dates of the offenses were not admitted
at trial, but the weather on the February and March dates was
described as "cold," "really cold," and "very cold." Moreover,
the timing of each of those incidents, in the early morning or
late evening hours when the defendant was either sleeping or
lying down, suggests the dangerousness of the circumstances
8
The second and fourth elements of the necessity defense
are not contested.
9
Citing a report of the National Coalition for the
Homeless, Winter Homelessness Services: Bringing our Neighbors
in from the Cold, at 15 (Jan. 2010), the amici assert that
homeless people routinely face life-threatening conditions in
the winter, noting that "life-threatening cases of hypothermia
do not require extreme temperatures; indeed, they often occur
when the ambient temperature is between [thirty-two] degrees
Fahrenheit and [forty] degrees Fahrenheit."
10
where sleeping may place one in the same position for an
extended period and, thus, increases the potential harm from the
weather. See Jones v. Los Angeles, 444 F.3d 1118, 1138 (9th
Cir. 2006) ("involuntary sitting, lying, or sleeping on public
sidewalks . . . is an unavoidable consequence of being human and
homeless without shelter"). See also In re Eichorn, 69 Cal.
App. 4th 382, 389 (1998) ("Sleep is a physiological need, not an
option for humans"). Moreover, the Commonwealth concedes that
the defendant met his burden of demonstrating a "clear and
imminent danger" for these six incidents.10
We agree with the Commonwealth that the defendant did not
meet his burden to show a "clear and imminent danger" for the
incident on June 10, where the evidence showed only that he had
to use the bathroom.11 Accordingly, we do not include the
incident on June 10 in our analysis requirements of the
availability of "legal alternatives" to trespass.
10
The Commonwealth does not contest the "clear and imminent
danger" element as to the April 8 trespass, therefore, we leave
for another day whether, as a matter of law, the reported
temperature, described as "cool," would create a clear and
imminent danger to a homeless person at noon when he was
charged.
11
Trial counsel asked the clerk present at the time the
defendant entered the store whether the defendant said that his
entry was "an emergency and that he really needed . . . to use
the bathroom"; she responded, "No, . . . he didn't say anything
to me." Moreover, the defendant did not request a necessity
defense instruction on this charge, instead requesting the
instruction for the charges that occurred "between February and
let's say April, due to the weather."
11
b. Availability of lawful alternatives. We have explained
previously that satisfaction of the third element requires a
defendant to demonstrate that he "ma[d]e himself aware of any
available lawful alternatives, 'or show[ed] them to be futile in
the circumstances.'" Kendall, 451 Mass. at 15, quoting
Commonwealth v. Pike, 428 Mass. 393, 401 (1998). On that point,
the defendant must present "some evidence," enough that
"supports at least a reasonable doubt" whether the unlawful
conduct was justified by necessity. Kendall, 451 Mass. at 14.
In other words, the defendant must present enough evidence to
demonstrate at least a reasonable doubt that there were no
effective legal alternatives available before being entitled to
an instruction on the necessity defense. This does not require
a showing that the defendant has exhausted or shown to be futile
all conceivable alternatives, only that a jury could reasonably
find that no alternatives were available. See Kendall, supra at
19 (Cowin, J., dissenting), citing Iglesia, 403 Mass. at 135.
The parties agree that this issue is governed by the
Kendall case, but disagree as to its application. In Kendall,
the defendant had driven while intoxicated to the hospital so
that he could take his girl friend for medical treatment of a
serious head wound. Id. at 11-12. He was charged with
operating a motor vehicle while under the influence of liquor
and requested an instruction on the defense of necessity because
12
he and his girl friend did not have telephones from which they
could call 911. Id. at 12. A majority of this court affirmed
the judge's decision to deny the defendant's request because the
record was "devoid of evidence that the defendant made any
effort to seek assistance from anyone prior to driving a motor
vehicle while intoxicated." Id. at 15. Further, the evidence
demonstrated that at least one neighbor, who lived about forty
feet from the defendant's residence, was home at the time of the
incident, that there was a fire station approximately one
hundred yards from that neighbor's home, and that the defendant
and his girl friend had just left a Chinese restaurant within
walking distance from the defendant's home. Id. at 11-12.
Accordingly, the defendant had not met his burden to "present at
least some evidence at trial that there were no effective legal
alternatives." Id. at 15. Three dissenting justices disagreed,
concluding that the defendant had met his burden because his
conduct was not unreasonable in light of the "risk of failure"
from the available alternatives; and therefore, weighing the
propriety of defendant's choice should have been given to the
jury. Kendall, 451 Mass. at 16, 18, 19 (Cowin, J., dissenting).
Here, the defendant's evidence was sufficient to meet his
burden under the majority holding of Kendall. In determining
whether there has been sufficient evidence of the foundational
conditions to the necessity defense, "all reasonable inferences
13
should be resolved in favor of the defendant, and, no matter how
incredible his testimony, that testimony must be treated as
true." Pike, 428 Mass. at 395. Taken in this light, there is
at least "some evidence" that the defendant lacked effective
legal alternatives to trespass during cold days and nights.
Kendall, 451 Mass. at 15. The defendant testified that he
stayed at an outdoor gazebo "[p]retty much" year round, that in
2007 he was told to leave the only local homeless shelter and
had previously been denied entry to the shelter in the middle of
the night following a blizzard, that no other places "want [him]
in . . . their facility," that he was unable to rent an
apartment despite repeated attempts, and that there was nowhere
besides public parks where he could stay. Additionally, the
officer who asked the defendant to leave the Barrington House at
approximately 9:30 P.M. on February 21 testified that the
defendant had to go back outside, and the judge sustained an
objection to defense counsel's question about whether the
officer offered to transport him to any other shelter or
facility. The manager of Castle Street corroborated the
defendant's attempt to rent an apartment by his testimony that
he called police to have the defendant removed from the building
after the defendant "forced his way onto the third floor of the
building, flashing money in hand, demanding I rent him an
apartment."
14
The Commonwealth argues that the defendant failed to meet
his burden because he presented no evidence that he was unable
to rent an apartment outside of Great Barrington, that he was
unable to gain entry to the Pittsfield shelter, and that he
would still be excluded from the local homeless shelter in 2014.
The Commonwealth's argument is unavailing. We do not require an
actor facing a "clear and imminent danger" to conceptualize all
possible alternatives. Kendall, 451 Mass.at 16 n.5. So long as
the defendant's evidence, taken as true, creates a reasonable
doubt as to the availability of such lawful alternatives, the
defendant satisfies the third element. Contrast Kendall, supra;
Pike, 428 Mass. at 401. The defendant has done so here.12
Additionally, we note that the options proposed by the
Commonwealth do not appear to be effective alternatives on the
record before us. Where the only local homeless shelter had
previously denied the defendant entry at 3 A.M. following a
blizzard and had later told him he had to leave, the law does
not require the defendant to continue to seek shelter there in
order to demonstrate that doing so is futile. Moreover, the
12
Whether a jury would believe that the defendant had no
lawful alternative where he could obtain shelter is not an
appropriate consideration for our analysis. See Commonwealth v.
Robinson, 382 Mass. 189, 200 (1981), quoting Commonwealth v.
Campbell, 352 Mass. 387, 398 (1967) ("[t]he fact that the
evidence may not be of a character to inspire belief does not
authorize the refusal of an instruction based thereon").
15
defendant's conduct is viewed at the time of the danger, and
actions that the defendant could have taken to find shelter
before the dangerous condition arose do not negate the
conclusion that there were no lawful alternatives available at
the time of his unlawful conduct. See United States v.
Kpomassie, 323 F. Supp. 2d 894, 901 (W.D. Tenn. 2004)
(alternatives not available at time of crime when their
availability was "sufficiently far in the past").
We do not view the requirement that a defendant consider
lawful alternatives as broadly as suggested by the Commonwealth.
Our cases do not require a defendant to rebut every alternative
that is conceivable; rather, a defendant is required to rebut
alternatives that likely would have been considered by a
reasonable person in a similar situation.13 Moreover, we are not
13
As the level of harm that could arise from the unlawful
conduct increases, so does the requirement for considering
lawful alternatives. See Commonwealth v. Hutchins, 410 Mass.
726, 731-732 (1991) (discussing weighing of "competing harms").
We recognize that the defendant's conduct may not have been
appreciated by owners, managers, and residents of the private
buildings in which the defendant sought cover, but there was no
evidence that the defendant's presence did, or had the potential
to, cause physical harm to any persons. Accordingly, the
requirement to consider alternatives may be viewed more
leniently where the potential harm was only property-related
than it would be viewed where the unlawful conduct, as in
Kendall, 451 Mass. at 15, had the potential to harm both persons
and property. The doctrine of necessity has its roots in the
notion that "[t]he law deems the lives of all persons far more
valuable than any property." United States v. Ashton, 24 F.
Cas. 873, 874 (C.C.D. Mass. 1834) (No. 14,470).
16
prepared to say as a matter of law that a homeless defendant
must seek shelter outside of his or her home town in order to
demonstrate a lack of lawful alternatives.14 Our law does not
permit punishment of the homeless simply for being homeless.15
See Commonwealth v. Canadyan, 458 Mass. 574, 579 (2010) (setting
aside finding that defendant violated condition of probation
where homeless shelters did not have technology required for
compliance). Once the foundational requirements are met, the
necessity defense allows a jury to consider the plight of a
homeless person against any harms caused by a trespass before
determining criminal responsibility.16
14
The viability of this option proposed by the Commonwealth
is hampered for the additional reason that the defendant had no
driver's license or any other apparent method to make the
twenty-mile trek to Pittsfield.
15
As of 2014, Massachusetts had the fifth highest number of
homeless people in the United States. 2014 Annual Homeless
Assessment Report to Congress, Office of Community Planning and
Development, U.S. Dep't of Hous. and Urban Dev., Part 1, at 8
(Oct. 2014). A single male, such as the defendant in this case,
is without emergency shelter options granted by law to other
residents of Massachusetts. See G. L. c. 23B, § 30 ("the
[Department of Housing and Community Development] shall
administer a program of emergency housing assistance to needy
families with children and pregnant wom[e]n with no other
children").
16
Allowing a defendant to defend his trespassing charges by
claiming necessity will not, of course, condone all illegal
trespass by homeless persons. It simply allows a jury of peers
to weigh the "competing harms" to determine criminal
responsibility. See Hutchins, 410 Mass. at 730. In Hutchins,
this court reviewed different circumstances where the balance of
17
Accordingly, in the circumstances of this case, we conclude
that the judge erred in denying the defendant's request for an
instruction on the defense of necessity. As the defendant
satisfied the foundational elements entitling him to the
defense, the judge's failure to instruct the jury about the
defendant's principal defense requires a new trial. See
Commonwealth v. Lapage, 435 Mass. 480, 486 (2001) (ordering new
trial after judge erred in omitting instruction on principal
defense). We therefore vacate the defendant's convictions of
the charges occurring in February, March, and April, 2014.
c. Exclusion of evidence relevant to necessity defense.
Because it is likely to arise at a retrial, we address the
defendant's argument that the judge infringed on his ability to
demonstrate the foundational elements of the necessity defense
where the judge limited the scope of his questioning on
harms was considered. Id. at 731-732, discussing Commonwealth
v. Thurber, 383 Mass. 328 (1981), and Commonwealth v. Iglesia,
403 Mass. 132 (1988). Specifically, the court noted that a
prison escape would likely be justified where a prisoner was in
imminent danger at the prison and submitted himself directly to
authorities after escape or where an individual who was
unlawfully carrying a firearm would likely be justified where
the carrier "wrested the gun" from an attacker and immediately
went to the police station. Id. Here, whether a homeless
person's trespass in a privately-owned building where he
previously had been barred from entry is a greater or lesser
harm than the intrusion suffered by the owner and occupiers of
the building is a question properly decided by a jury where the
defendant met the foundational elements for the necessity
defense. Iglesia, supra at 135 (jury instructed on whether
defendant made "better choice" by acting illegally).
18
relevancy grounds. Specifically, the judge ruled as
"irrelevant" questions by defense counsel during cross-
examination that related to whether the defendant was asleep or
intoxicated when trespassing.17 Additionally, the judge
prohibited counsel from asking officers who responded to the
trespass calls whether they offered the defendant transportation
to a shelter. "Evidence is relevant if it renders the desired
inference more probable than it would be without the evidence."
Poirier v. Plymouth, 374 Mass. 206, 210 (1978), citing Green v.
Richmond, 369 Mass. 47, 59 (1975). Relevant evidence may be
admissible if it "tends to establish the issue" or "constitutes
a link in the chain of proof." Poirier, supra, quoting
Commonwealth v. Abbott, 130 Mass. 472, 473 (1881). Here, that
evidence would be anything that tends to establish any of the
four elements of the necessity defense. We conclude that the
questions set forth above speak to the presence of a clear and
17
The defendant contested, on this same ground, several
other evidentiary rulings where the judge limited inquiry. For
example, the judge concluded that the defendant's attempt to
introduce evidence that one of the tenants may have given him
permission to stay in the common areas of the building was
irrelevant, but that finding also was predicated on the
defendant's failure to establish that anyone had authority to do
so. Several objections to the defendant's testimony also were
sustained where the defendant was nonresponsive and testifying
in a narrative. Additionally, the judge found questions about
how the defendant arrived at court that day to be irrelevant,
but did allow testimony that he did not have a driver's license.
We do not discern any error in these rulings on the record
before us.
19
imminent danger, the effectiveness of the defendant's conduct in
abating that danger, or the availability of alternatives, and
are therefore relevant.
2. Bias. The defendant argues that the judge improperly
excluded evidence relevant to bias, depriving him of his right
to present a full defense under art. 12 of the Massachusetts
Declaration of Rights. Specifically, the defendant argues that
the judge erred in limiting his cross-examination of the
property manager for the Barrington House and the owner of SoCo
Creamery where trial counsel's questions were designed to show
bias against him and a potentially illegitimate ground on which
the no trespass orders were based. We address the issues
relating to the witness for Barrington House because they are
likely to arise at retrial, and to the witness for SoCo Creamery
because we have not vacated the defendant's conviction of the
June 10 charge.
As to the property manager for the Barrington House, the
defendant claims error in the judge's rulings sustaining the
Commonwealth's objections to the following questions: whether
the defendant was a "disruption with . . . tenants," whether his
presence was "annoying to [her] as a property manager," and
whether he was "trespassed . . . basically because he's on the
property itself." As to the owner of SoCo Creamery, the
defendant argues that the judge erroneously prohibited counsel
20
from asking the owner whether he had "expressed a strong opinion
that [he] fe[lt] that [the defendant] has no respect for any
businesses in town" and whether the defendant had "become a
nuisance in your eyes to your business." The prosecutor did not
object on any stated ground, the judge did not express his
reasons for sustaining the objections, and defense counsel did
not directly respond to the objections.
"The right of a criminal defendant to cross-examine a
prosecution witness to show the witness's bias, and hence to
challenge the witness's credibility, is well established in the
common law, in the United States Constitution," and in art. 12
of the Massachusetts Declaration of Rights. Commonwealth v. Tam
Bui, 419 Mass. 392, 400, cert. denied, 516 U.S. 861 (1995). A
judge has "no discretion to bar all inquiry into the subject" of
bias where the defendant demonstrates there is such a
possibility. Id. at 400. The defendant must, however, "make a
'plausible showing' of alleged bias, with a factual basis for
support." Commonwealth v. Sealy, 467 Mass. 617, 624 (2014),
quoting Tam Bui, supra at 401. If the defendant fails to do so,
the judge has discretion to exclude the evidence. Sealy, supra.
The defendant made no showing at trial of the alleged bias
and argues on appeal that a per se bias exists against homeless
persons, which calls into question the legitimacy of the no
trespass orders. Neither witness testified to the grounds for
21
obtaining the no trespass orders for Barrington House and SoCo
Creamery or about any details surrounding the charged conduct.18
Weighed against the actual testimony provided by these two
witnesses, there was no error in excluding this line of
questioning. Where the witnesses did not provide details about
the basis for the no trespass orders, the legitimacy of the
orders was not a subject of their testimony and would not have
been affected by any claimed bias.
3. Prosecutor's closing argument. The prosecutor stated
in his closing argument that the defendant "testified that he
was at the Construct up until the first week of March before
these incidents occur, before then on his own testimony he was
at the Construct." The defendant, however, testified that he
stayed at the Construct in 2007, not 2014. The defendant argues
on appeal that this misstatement was prejudicial to his argument
that he sought shelter during the cold out of necessity.
Because we assume that this misstatement will not occur at
retrial and only affects the convictions that we have vacated,
we do not discuss the claim further.
4. April 8 incident. The defendant argues that the judge
erred in denying his motion for a required finding of not guilty
18
The no trespass orders for the Barrington House and SoCo
Creamery were authenticated and introduced during the testimony
of the two witnesses.
22
on the charge stemming from his presence at Barrington House on
April 8. Specifically, he argues that his presence in the
publicly accessible common areas of the building during business
hours is an insufficient basis on which he could be convicted of
trespassing.
The criminal trespass statute, G. L. c. 266, § 120,
provides in relevant part, "Whoever, without right enters or
remains in or upon the dwelling house, [or] buildings . . . of
another . . . after having been forbidden so to do by the person
who has lawful control of said premises . . . shall be
punished." The defendant argues that a guilty verdict requires
loitering or lingering, and because the record fails to
establish either, he must be acquitted of the charge. We
disagree. The criminal trespass statute does not require this
extra element that the defendant seeks to include.
The defendant's reliance on Commonwealth v. Richardson, 313
Mass. 632 (1943), is unavailing. In Richardson, the defendants,
Jehovah's Witnesses, were charged with trespass based on their
presence in the common area of an apartment building, right
after they had been directly told that they were prohibited from
doing so. We concluded that the defendants had an implied
license to use the common areas of the building to contact
tenants even without "any proof of direct authority"; and
23
therefore, the defendant's "entry" was lawful.19 Id. at 639-640.
The facts of this case are significantly different than those in
Richardson. Here, it is uncontested that persons with authority
had banned the defendant from the Barrington House prior to any
of the charged entries. Accordingly, any license to enter the
common areas that may have been implied was revoked by the no
trespass order. See Hood, 389 Mass. at 590 ("Even if
[defendants] had an implied license to enter based on
Richardson, they had no right to remain after those with lawful
control of the property asked them to leave").
The judge did not err in denying the defendant's motion for
a required finding of not guilty.
5. The defendant's Moffett briefs. The defendant, in what
he characterizes as briefs filed pursuant to Commonwealth v.
Moffett, 383 Mass. 201 (1981), raises several claims for our
review. We have reviewed these issues and conclude that they do
not merit relief.
6. Conclusion. Because we conclude that the judge erred
in denying the defendant's request for a jury instruction on the
defense of necessity for the trespassing charges that occurred
in February, March, and April, 2014, we vacate those six
19
In Commonwealth v. Richardson, 313 Mass. 632, 634-635
(1943), we noted that G. L. c. 266, § 120 (Ter. Ed.), prohibits
entry and remaining on a property without right, but the
defendant had been charged only with unlawful entry.
24
convictions and remand for a new trial. We affirm the
conviction stemming from conduct that occurred on June 10, 2014.
So ordered.