Opinion
20-P-221
07-30-2021
Antonio MASTROMATTEI v. Tyler SPENCER & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this negligence action arising out of an automobile accident, the plaintiff, Antonio Mastromattei, appeals from the judgment entered in favor of the defendants, Tyler Spencer and Shipyard Waste Solutions, LLC, following a jury trial. On appeal, Mastromattei claims that the judge improperly precluded him from impeaching Spencer with a prior inconsistent statement during cross-examination. We affirm.
Mastromattei's sole claim on appeal stems from his cross-examination of Spencer at trial. As Mastromattei started to question Spencer about his interactions with police at the scene of the accident, Spencer objected, and a sidebar conference was held. Mastromattei sought to impeach Spencer with Spencer's statement, contained in a police report, to police at the scene. The officer who authored the report was not called as a witness, and the report was not admitted into evidence. The judge prohibited Mastromattei from asking Spencer "if he told the police officer that he was behind [Mastromattei]" because Mastromattei was unable to impeach Spencer without extrinsic proof of the officer's statement.
When asked at his deposition what he told police at the scene, Spencer apparently stated "I don't recall."
Because we have only a few excerpts of the trial transcripts, Mastromattei did not provide us with the necessary record to review his claim. See Mass. R. A. P. 8 (b) (1), as amended, 430 Mass. 1603 (1999). Without an adequate record, we are unable to determine whether any error in the judge's ruling would have affected the jury. See DeJesus v. Yogel, 404 Mass. 44, 48 (1989) ("the exclusion of particular evidence would not require a new trial where, analyzing the facts, it was most unlikely that the jury would have been affected by the error").
Putting this deficiency to one side, Mastromattei fares no better on the merits. "The scope of cross-examination, including to what extent the accuracy, veracity, and credibility of a witness may be tested, rests largely in the sound discretion of the judge" (citation omitted). Olson v. Ela, 8 Mass. App. Ct. 165, 169 (1979). Even if Spencer's statement to police constituted a prior inconsistent statement, there is no indication in the record before us that Mastromattei intended to offer the prior statement as evidence by either calling the officer as a witness or seeking to admit the report into evidence. Further, Mastromattei failed to make a sufficient offer of proof to support his proposed line of questioning. See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 123 (2000) (failure by plaintiff to make offer of proof of proposed witnesses’ testimony meant plaintiff could not show prejudice by judge's ruling). Consequently, the decision to preclude questioning of Spencer about the contents of the police report was not an abuse of discretion. See Commonwealth v. Parent, 465 Mass. 395, 399-400 (2013) (explaining mechanics of prior inconsistent statements).
Judgment affirmed.