Commonwealth v. Kindell (Lawyers Weekly No. 11-106-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑987 Appeals Court COMMONWEALTH vs. GINA KINDELL. No. 12‑P‑987. Suffolk. May 9, 2013. ‑ August 21, 2013. Present: Hanlon, Brown, & Agnes, JJ. Evidence, Bias, Cross‑examination. Witness, Bias, Cross‑examination. Constitutional Law, Harmless error. Error, Harmless. Practice, Criminal, Harmless error. Complaint received and sworn to in the Central Division of the Boston Municipal Court Department on May 17, 2011. The case was tried before Annette Forde, J. Anne Ravaud Kealy for the defendant. Cailin M. Campbell, Assistant District Attorney (Spencer Lord, Assistant District Attorney, with her) for the Commonwealth. AGNES, J. The defendant Gina Kindell was found guilty of the lesser included offense of assault and battery after a trial by jury on a complaint charging her with assault and battery by means of a dangerous weapon. She raises several issues on appeal, but only one requires discussion. For the reasons that follow, there must be a new trial because the defendant was deprived of the right to cross-examine the Commonwealth’s only witness as to bias. Background. The Commonwealth’s case was based on the testimony of a single witness, James Hubbard, whose stepson Steven Kindell was married to the defendant. The defendant did not testify. In brief, the jury heard Hubbard testify that on the evening of April 21, 2011, he was in a pizza shop across the street from his apartment. He did not see the defendant enter the shop as his back was toward the entrance. He testified that, without any provocation on his part, the defendant came up to him and began to swear and yell at him. The shop owner asked them to leave. According to Hubbard, when the pair went outside, the defendant put her purse against a nearby fence and, without warning, punched him in the face. He responded by hitting her with an open hand and knocking her to the ground. She got up and lunged at him. He felt something sharp, and when he touched his forearm through his winter coat he felt and saw blood. Hubbard also testified that he saw an ice pick in the defendant’s hand. He took out his cellular telephone to call the police, but it fell to the ground. He testified that as he tried to pick it up, the defendant struck him five […]