MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the defendant, Harrison Castillo, was convicted of assault and battery on a family or household member, strangulation, and witness intimidation. On appeal he argues that the judge abused his discretion in precluding evidence of the victims bias. We affirm.
Background. The defendant and his wife (the victim) resided together in Lawrence, Massachusetts. They had met online when the defendant lived in Lawrence and the victim lived in the Dominican Republic. They were married in the Dominican Republic on December 31, 2014. The victim and her two children subsequently joined the defendant in Massachusetts. The defendant was not the biological father of the children.
On July 27, 2018, the defendant arrived home from work and “started fighting” with the victim because she had not fixed a lightbulb that was not working. The defendant was carrying a bottle of alcohol and had been drinking. The defendant went into the bathroom and became “very upset” because the rugs in the bathroom were wet. He “started yelling at [the victim] and [her] daughters and insulting [the victim].” The defendant left the home but returned approximately twenty minutes later. An argument between the couple ensued during which the defendant spat in her face, grabbed her by the hair, grabbed her neck, and choked her. The victim could not breathe. At some point, the victim yelled to her daughters to call the police. The defendant then “took the phone away from [her] daughters.” The victim locked herself in the childrens bedroom for the night.
The following day the victim went to the police station to report the incident. Officer Edward Estrada of the Lawrence Police Department met with the victim, observed bruising on her neck area and on her forehead, and photographed her injuries.
2
The officer subsequently located the defendant and placed him under arrest.
3
Discussion. The defendant argues that the judge wrongly denied his efforts to elicit testimony regarding the victims knowledge of the “U-Visa program.”
4
The defendant claims that the victims alleged knowledge of this program provided her a motive to lie about the domestic violence at issue. The claim is unavailing.
“The Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights entitle a defendant to cross-examine prosecution witnesses for bias or prejudice.” Commonwealth v. Chicas, 481 Mass. 316, 320 (2019). “The right is not absolute, however, and the judge has broad discretion to determine the scope and extent of cross-examination.” Commonwealth v. Johnson, 431 Mass. 535, 538 (2000). “A defendant must make a plausible showing of alleged bias, with a factual basis for support; otherwise, the judge may restrict or entirely exclude the inquiry” (quotation and citation omitted). Chicas, supra.
Here, the defendant first attempted to elicit information regarding the U-Visa program during cross-examination of the victim. Defense counsel asked the victim whether, prior to entering the United States, she and the defendant “had to submit applications to immigration?” At sidebar, following an objection from the Commonwealth, defense counsel proffered that the victim “was informed ․ that if she became a victim of domestic violence that that could -- that was another avenue where she could get permanent residency.” Defense counsel further argued that the victims immigration status was relevant and that the proffered evidence showed her motivation to fabricate the incident. The judge sustained the Commonwealths objection. Later during cross-examination, defense counsel again argued at sidebar that the path to permanent residency provided by the U-Visa program was “a basis for motive to lie” and sought to question the victim about whether she applied for a visa upon entry to the United States and, if so, whether that application was temporary or permanent. The judge again sustained the Commonwealths objection. Later at trial, on direct examination of the defendant, defense counsel sought to ask the defendant whether he was present when the victim met with immigration officials, and what she was told.
5
Here again, the judge sustained the Commonwealths objection, finding that “[b]ased on the state of the evidence ․ its not relevant.”
6
The judges rulings did not constitute an abuse of discretion. Contrary to the defendants argument, he failed at trial to establish that the U-Visa program was relevant. Contrary to the defendants argument, and as the judge found, defense counsel only proffered at trial the conclusory and speculative argument that at some point in the past (see note 4, supra) the victim was told about the U-Visa program as a potential means for victims of domestic violence to establish permanent residency. However, there was no evidence of relevance where defense counsels proffer did not assert (and the evidence at trial did not establish) that at the time that the victim reported the incident to the police officer or testified at trial she was still a noncitizen, was facing immigration issues, was attempting to become a United States citizen, was having any difficulty with her immigration or citizenship status, or would otherwise have been eligible for the U-Visa program. In other words, the defendant did not lay any foundation to establish the relevance of the U-Visa program to the facts at issue.
7
The judge recognized as much when he ruled that “[b]ased on the state of the evidence ․ its not relevant.” On the record before us we cannot say that the judge abused his discretion. See Chicas, 481 Mass. at 321-322. Contrast Commonwealth v. Sealy, 467 Mass. 617, 624 (2014) (defendant allowed to elicit testimony that victim was aware of benefits of U-Visa program before informing police of rape where victim had applied for such benefits at time of trial). Discerning no abuse of discretion, the judgments are affirmed.
So ordered.
Affirmed.
FOOTNOTES
2
. The photographs depicting the injuries to the victim were admitted as exhibits at trial.
3
. The defense at trial centered on the victims credibility and more specifically the claim that the victim was the aggressor who struck the defendant. The defendant testified at trial and claimed, inter alia, that the victim hit him in the face and attempted to prevent him from leaving the apartment during the confrontation. The defendant testified that on the morning after the incident he went to the police station and spoke to some officers. In support of his claim, the defense introduced photographs showing the defendants presence at the police station on the day after the offense.
4
. Neither the evidence at trial nor defense counsels offer of proof described in detail the specifics of the “U-Visa program.” However, defense counsel suggested that the “U-Visa program” involves a specialized visa for which certain victims of domestic violence may become eligible.
5
. Although not entirely clear from the testimony of the victim or defendant, or from defense counsels proffer, it appears that the victims purported conversation with immigration officials would have occurred at least eighteen months prior to the crimes at issue herein.
6
. The judge also determined that the proposed testimony constituted inadmissible hearsay. This portion of the judges ruling was incorrect, and the Commonwealth concedes that the proposed testimony did not involve inadmissible hearsay.
7
. To the extent defense counsel attempted to lay such a foundation by seeking to question the victim about her visa application at the time she entered the United States, that effort was inadequate where (a) that visa application occurred at least eighteen months prior to the crimes at issue herein, see note 4, supra; (b) counsel did not proffer any questions related to the victims current immigration status; and (c) counsel did not request a voir dire of the victim to lay the foundation for questioning on this or any other ground.