Appellant McCowen Brief - Mass Cases
Appellant McCowen Brief - Mass Cases Appellant McCowen Brief - Mass Cases
process, Change of venue, jury county, or sequestration should selection from another have been ordered. See Commonwealth v. Aldoupolis, 390 Mass. 428 (1983). VI1I.TAE COURT ERRED IN THE RESTRICTIOW OF DR. BROWN'S TESTIMONY AND ADMISSIOW OF BAD ACTS EVIDEUCCE. It has been stated "[h}ow far the cross-examination of a witness may be deemed helpful and relevant . as well as to what extent the accuracy, veracity or credibility of witnesses may be tested, must be Left largely to the sound discretion of the presiding judge, and is not open to revision, unless ... such di,scretion has been exercised in a way that results in the prejudice of a party ... by reason __ of too narrow restriction or too great breadth of inquiry. Commonwealth v. Vardinski, 438 Mass. 444 (2003); Commonwealth v. Civello, 39 Mass, App. Ct. 313 (1995). However, I' [ c ] ross- examination for the purpose of showing falsity of other testimony of the witness or bias and prejudice on his part is a matter of right." Commonwealth v. Russ, 232 Mass, 58, 79 (1919), The court may not bar examination about material matters, even if it elicits testimony not otherwise admissible. The prosecutor asked psychologist Eric Brown about McCowen's ability to sketch the interior of Worthington's home during his interrogation. Tr. 3286-87,3291-3306. -59-
These questions opened the door to a portion of Dr. Brown’s interview with McCowen, but the court erroneously precluded re-direct on that issue, Leaving the jury with the impression that McCowen knew the home because he committed the crime. Circumstances surrounding that sketch were material, not collateral. See RUBS, supra. Yet when defense counsel attempted to address th.e issue, the trial court shut him down, then went further, daring McCowen to take the stand instead of trying to “back- door” evidence of his consensual sexual relationsihip with the victim and presence in the home before her death. Tr. 3306,3328-3330. This blatantly adversarial behavior was an abuse of discretion, resulting in “the prejudice of a party ... by ... too narrow restriction ... of inquiry. “ Vardinski, supra. It “went to the heart of the defense,” civello, supra. It was clear, reversible error. The trial court also erred when it allowed Detective Mason to testify that prior restraining orders influenced his arrest of McCowen for murder, taunting that the defense had “made [its] own bed.“ Tr. 2025. Prior misconduct may not be admitted to prove a propensity to commit an indicted offense. commonwealth v. C!halifoux, 362 Mass. 811, 815-16 (1973). This highly prejudicial evidence is not admissible to establish general criminal tendency or bad character. Commonwealth v. Turner, 393 -60-
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These questions opened the door to a portion of Dr.<br />
Brown’s interview with <strong>McCowen</strong>, but the court erroneously<br />
precluded re-direct on that issue, Leaving the jury with<br />
the impression that <strong>McCowen</strong> knew the home because he<br />
committed the crime. Circumstances surrounding that<br />
sketch were material, not collateral. See RUBS, supra.<br />
Yet when defense counsel attempted to address th.e issue,<br />
the trial court shut him down, then went further, daring<br />
<strong>McCowen</strong> to take the stand instead of trying to “back-<br />
door” evidence of his consensual sexual relationsihip with<br />
the victim and presence in the home before her death.<br />
Tr. 3306,3328-3330. This blatantly adversarial behavior<br />
was an abuse of discretion, resulting in “the prejudice<br />
of a party ... by ... too narrow restriction ... of inquiry. “<br />
Vardinski, supra. It “went to the heart of the defense,”<br />
civello, supra. It was clear, reversible error.<br />
The trial court also erred when it allowed Detective<br />
Mason to testify that prior restraining orders influenced<br />
his arrest of <strong>McCowen</strong> for murder, taunting that the<br />
defense had “made [its] own bed.“ Tr. 2025. Prior<br />
misconduct may not be admitted to prove a propensity to<br />
commit an indicted offense. commonwealth v. C!halifoux,<br />
362 <strong>Mass</strong>. 811, 815-16 (1973). This highly prejudicial<br />
evidence is not admissible to establish general criminal<br />
tendency or bad character. Commonwealth v. Turner, 393<br />
-60-
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