NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-351

COMMONWEALTH

vs.

JAMES G. BERNHARDT.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the District Court, the defendant was 

convicted of assault and battery on a family or household 

member, pursuant to G. L. c. 265, § 13M (a).1 On appeal, he 

claims that the judge abused his discretion by denying the 

defendant's request to continue the trial, and by precluding 

certain cross-examination of the victim. We affirm.

1. Motion to continue. "'The decision whether to grant a 

motion to continue lies within the sound discretion of the trial 

judge' and is reviewed for abuse of that discretion."

Commonwealth v. Conley, 103 Mass. App. Ct. 496, 507 (2023), 

quoting Commonwealth v. Miles, 420 Mass. 67, 85 (1995). "[A] 

continuance shall be granted only when based upon cause and only 

1 The defendant was acquitted of a separate charge of 

strangulation, pursuant to G. L. c. 265, § 15D (b).
2

when necessary to insure that the interests of justice are 

served." Mass. R. Crim. P. 10 (a) (1), 378 Mass. 861 (1979). 

Cf. Vazquez Diaz v. Commonwealth, 487 Mass. 336, 344-346 & n.12

(2021).

Here, on the day of the trial, defense counsel sought a 

continuance because a witness he had summonsed reported that he 

had COVID-19 and could not attend the trial.2 According to 

counsel, the witness did not see the incident in question, but 

saw the defendant's injuries the following day. Those 

observations were the expected sum total of the witness's 

intended testimony.3 Counsel maintained that this testimony was

necessary because there were neither photographs nor a police 

report to corroborate the existence of the defendant's injuries. 

The prosecutor opposed the continuance and indicated that the 

victim would testify how she injured the defendant. In lieu of 

a continuance, the prosecutor offered to stipulate to the 

defendant's specific injuries and that they were visible the day 

after the incident.4 Defense counsel maintained that having a 

2 Through an investigator, defense counsel learned two or three 

days prior to trial that the witness was unavailable.

3 Defense counsel claimed that the witness might also testify as 

to other facts, but he could not state what other testimony 

might have been provided.

4 The parties also agreed that the defendant would be permitted 

to show the jury his scars from what he claimed were the result 

of the victim attacking him, and the defendant did so.
3

live witness was preferable, but the judge denied the 

continuance over counsel's objection and allowed the parties to 

enter the stipulation.

Here, the central issue in the case was whether the 

defendant acted in self-defense. Components to that defense 

were questions of who the first aggressor was and whether the 

defendant had an opportunity to retreat before using force. See 

Commonwealth v. Pring-Wilson, 448 Mass. 718, 733-735 (2007). 

Because the absent witness did not see the altercation, he could 

not have provided any evidence that would have shed any light on 

whether vel non the defendant acted in self-defense. In other 

words, a continuance to secure the witness's testimony about the 

defendant's injuries would have "result[ed] in a delay but not 

in the introduction of any significantly new evidence." 

Commonwealth v. Gilchrest, 364 Mass. 272, 277 (1973). See 

Commonwealth v. Breyer, 398 Mass. 9, 16 (1986) (testimony that 

"would not have measurably contributed" to jury's ability to 

resolve central issue did not justify continuance). The denial 

of the motion to continue was not an abuse of discretion, as the 

judge did not make "a clear error of judgment in weighing the 

factors relevant to the decision, such that the decision f[ell]

outside the range of reasonable alternatives" (quotation and 

citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 

n.27 (2014).
4

2. Cross-examination of the victim. In defense counsel's 

cross-examination of the victim, he inquired about the victim's 

request for a continuance due to her unavailability on an 

earlier scheduled date for trial. The prosecutor lodged an 

objection, and the parties were heard at sidebar. Defense 

counsel stated that the victim had sought a continuance for 

medical purposes, but her social media revealed that she was in 

Florida on that date. Defense counsel maintained that this line 

of questioning was relevant to the victim's credibility. The 

judge sustained the objection and ruled that the intended 

inquiry was more prejudicial than probative. The defendant 

claims that the judge abused his discretion in precluding this 

inquiry. We disagree.

"The Sixth Amendment to the United States Constitution and 

art. 12 of the Massachusetts Declaration of Rights provide 

defendants with an opportunity for cross-examination; they do 

not guarantee a 'cross-examination that is effective in whatever 

way, and to whatever extent, the defense might wish.'" 

Commonwealth v. Belmer, 78 Mass. App. Ct. 62, 67 (2010), quoting

Commonwealth v. Cong Duc Le, 444 Mass. 431, 438 (2005). See 

Commonwealth v. Edwards, 444 Mass. 526, 535 (2005) ("the right 

to cross-examine adverse witnesses under art. 12 is not

absolute"). "If a defendant believes that the judge improperly 

restrained his cross-examination of a witness, the defendant 
5

must demonstrate that the judge abused his discretion and that 

he was prejudiced by such restraint" (citation omitted). 

Commonwealth v. Sealy, 467 Mass. 617, 624 (2014).

As an initial matter, on the record before us, it is not 

apparent that the victim misrepresented her need for a 

continuance, that she was actually in Florida at the time in 

question, or, if she was, whether she was there for medical 

purposes. Defense counsel claimed to have photographs from the 

victim's social media, but he failed to ask for them to be 

marked for identification, offer them as an exhibit, and suggest 

how he intended to authenticate them.

Even without the above deficiencies, as the Commonwealth 

properly notes, "'specific instances of misconduct showing the 

witness to be untruthful are not admissible for the purpose of 

attacking . . . the witness's credibility.'" Commonwealth v. 

Lopes, 478 Mass. 593, 606 (2018), quoting Mass. G. Evid. 

§ 608(b) (2017). Moreover, whether the victim had 

misrepresented her need for a continuance was entirely 

collateral to the contested issues in the case. See 

Commonwealth v. Basch, 386 Mass. 620, 623 (1982) ("a judge may 

limit . . . impeachment when the testimony concerns collateral 

issues in the case").

Finally, the judge had the discretion to "exclude relevant 

evidence if its probative value is substantially outweighed by a 
6

danger of . . . unfair prejudice [or] confusing the issues." 

Mass. G. Evid. § 403 (2023). The probative value of the 

evidence that the victim may have misrepresented her need for a 

continuance was substantially outweighed by its prejudicial 

effect. See Commonwealth v. Jacques, 102 Mass. App. Ct. 157, 

163-164 (2023). There was no abuse of discretion.

Judgment affirmed.

By the Court (Meade, Blake & 

Desmond, JJ.5),

Assistant Clerk

Entered: February 23, 2024.

5 The panelists are listed in order of seniority.