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SJC-11874

COMMONWEALTH vs. DAVID MAGADINI.

Berkshire. December 7, 2015. - June 23, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & 

Hines, JJ.

Trespass. Necessity. Practice, Criminal, Request for jury 

instructions. Evidence, Cross-examination, Relevancy and 

materiality, Bias of government witness.

Complaints received and sworn to in the Southern Berkshire 

Division of the District Court Department on April 8, April 9, 

and July 8, 2014.

The cases were tried before Fredric D. Rutberg, J.

The Supreme Judicial Court granted an application for 

direct appellate review.

Joseph N. Schneiderman for the defendant.

Jessie J. Rossman (Matthew Segal with her) for American 

Civil Liberties Union of Massachusetts & others.

John Bossé, Assistant District Attorney, for the 

Commonwealth.

HINES, J. The defendant, David Magadini, was convicted by 

jury on seven counts of criminal trespass, each based on the 
2

defendant's presence, in 2014, in privately-owned buildings 

where he was the subject of no trespass orders.

1 Five incidents 

occurred between February and March, the sixth occurred on April 

8, and the seventh occurred on June 10. Before trial and during

the charge conference, the defendant requested a jury 

instruction on the defense of necessity, asserting that his

conduct was justified as the only lawful alternative for a 

homeless person facing the "clear and imminent danger" of 

exposure to the elements during periods of extreme outdoor 

temperatures. The judge denied the request, concluding that the 

defendant had legal alternatives to trespassing available. As 

to each conviction, the judge imposed concurrent sentences of 

thirty days in a house of correction. A single justice of the 

Appeals Court stayed the sentences pending resolution of this 

appeal. We granted the defendant's application for direct 

appellate review.

On appeal, the defendant asserts the following errors at 

trial: (1) denial of his request for an instruction on the 

defense of necessity; (2) limitation of his cross-examination of 

witnesses; (3) misstatements made by the prosecutor during 

closing argument; and (4) denial of his motion for a required 

 

1 The judge allowed the defendant's motion for a required 

finding of not guilty on an eighth charge, which was based on 

the defendant's presence at the site of the former St. James 

Church, located in Great Barrington, on April 19, 2014.
3

finding of not guilty on the charge stemming from the April 8

incident.

2 We conclude that the judge erred in denying the 

defendant's request for an instruction on the defense of 

necessity as to the six trespassing charges related to the 

incidents from February through April, 2014,3 and that the error 

was prejudicial. Accordingly, we vacate the first six 

convictions and remand for a new trial.

4 The defendant did not, 

however, meet his burden to demonstrate the foundational 

requirements for a necessity defense instruction as to the 

seventh conviction, stemming from the June 10 trespass. 

Therefore, we affirm that conviction as well as the denial of 

his motion for a required finding of not guilty for the April 8 

incident. We address the defendant's remaining claims, which 

relate to issues that may arise at retrial.

Background. We recite the facts the jury could have found,

reserving certain details for our discussion of the specific 

 

2 The defendant, in multiple briefs that he contends are

filed in accordance with Commonwealth v. Moffett, 383 Mass. 201 

(1981), raises several new claims and expands on claims made in 

his appellate brief.

3 These six charges related to the trespasses by the 

defendant on February 20, February 21, March 4, March 6, March 

28, and April 8.

4 We acknowledge the amicus brief submitted by the American 

Civil Liberties Union of Massachusetts, Committee for Public 

Counsel Services, and Massachusetts Association of Criminal 

Defense Lawyers in support of the defendant.
4

issues raised. In 2014, the defendant was charged with 

trespassing on three properties in Great Barrington --

Barrington House, Castle Street, and SoCo Creamery. Barrington 

House is a mixed-use building with several different 

restaurants, an enclosed atrium, and apartments above the 

businesses. Castle Street is a three-story building with retail

establishments, offices, and apartments. SoCo Creamery is an 

ice cream shop. The defendant was barred from each property by 

no trespass orders. The owner of the Castle Street building had 

the defendant served with a no trespass order in July, 2008; the 

manager of Barrington House had the defendant served in June, 

2012; and the owner of SoCo Creamery had the defendant served in 

January, 2014. All of the no trespass orders were in effect at 

the time the charges were brought against the defendant.

Four charges related to the defendant's presence at 

Barrington House. On February 21, March 4, and March 6, police 

found the defendant lying in a hallway by a heater during the 

evening, nighttime, or early morning hours of days described as 

"cold" or "very cold." At approximately noon on April 8, a day 

described as "cool," police responded to a report and observed 

the defendant walking through a common area in the Barrington 

House toward the front door. Two charges stemmed from the 

defendant's presence at Castle Street, where police had found 

the defendant lying on the floor in the lobby next to a heater 
5

during periods of cold weather. The first incident occurred 

between 8 A.M. and 10 A.M. on February 20, 2014; the defendant 

was awake. The second incident occurred at approximately 6:30 

A.M. on March 28; the defendant was sleeping. The seventh 

charge was based on conduct that occurred on June 10, 2014, when 

the defendant entered SoCo Creamery, ignored requests by the 

clerk to leave the premises, and used the bathroom for ten to 

fifteen minutes. The defendant did not dispute that he violated 

all of the trespass orders, focusing his case instead on the 

necessity defense in cross-examination and his direct testimony.

The defendant, a lifelong resident of Great Barrington,

became homeless after he moved out of his parents' home in 2004. 

His purpose in moving out was to "reorganize." He planned to

return to his parents' home, but he was unable to do so because 

the "landlord," who "wanted [the defendant] out" refused to 

allow it. After leaving his parents' home, he generally lived 

outside year-round, but during the winter months, he tried to 

"find a more sheltered area" from the "ice and a snow storm." 

During the cold weather, the defendant used blankets, gloves, 

and scarves to try to stay warm, but when the weather was "so 

severe . . . that [it was] not possible," he would seek shelter 

in private buildings.

For a two- to three-month period in the winter of 2007, the 

defendant stayed at the local homeless shelter, called the 
6

Construct.5 Three days before he began staying there, he had 

gone to that shelter at approximately 3 A.M. following a 

blizzard. He was refused entry, and he stayed on the porch for 

about an hour before being asked to leave. A few days later, he

spoke with someone from the shelter, and he was allowed to stay 

for a few months before he was told to leave because of "certain 

issues." Therefore, the defendant had no other place to stay in 

Great Barrington.

6 For a period of "three to four years," he 

lived outdoors, first at Stanley Park and later at the outdoor 

gazebo behind the Great Barrington Town Hall, where he had been 

living at the time of the trespass incidents. He considered the 

gazebo his home and registered to vote from that address.7

 

5 As pointed out in the amicus brief, on its Web site, 

Construct advertises "permanent" and "transitional" housing, see

http://constructinc.org/about-us/ [https://perma.cc/5A85-7G9K], 

and asserts that persons who "lost" housing "may be eligible for 

temporary room and board and support services while . . .

mak[ing] the transition from homelessness to permanent housing," 

see http://constructinc.org/housing-options/

[https://perma.cc/X858-8Z5W].

6 The defendant testified that he had had one friend who 

would take him in occasionally, but he learned the day before 

his testimony that the friend had "recently" passed away. 

During follow-up questioning, the defendant testified that there 

was no other "private apartment" where he could stay during the 

applicable time period. He also responded, "No," to the 

question whether there was any "private residence other than the 

public parks" where he could stay.

7 The defendant testified that he registered to vote using 

the address of the gazebo, 334 Main Street, as his "official 

residency."
7

At the time of the trial, the defendant was a sixty-seven 

year old unemployed college graduate. He had worked in the 

past, but he was not employed at the time he was charged with 

the trespassing offenses. The defendant had attempted to obtain 

an apartment almost "every week for about seven years." 

Although he had money to pay for an apartment depending on the 

day, he explained that it was very difficult to find an 

apartment in Great Barrington because of the upfront fees. 

Accordingly, he was unable to obtain an apartment. He was aware 

of a homeless shelter in Pittsfield, but he did not consider 

renting lodging or staying at a homeless shelter outside of 

Great Barrington. He testified, "I was born here and I intend 

to stay here." He does not have a driver's license.

Discussion. 1. Necessity defense. The defendant claims 

that the judge erroneously denied his request for a jury 

instruction on the defense of necessity and that he improperly 

excluded evidence relevant to the defense. The common-law 

defense of necessity "exonerates one who commits a crime under 

the 'pressure of circumstances' if the harm that would have 

resulted from compliance with the law . . . exceeds the harm 

actually resulting from the defendant's violation of the law."

Commonwealth v. Kendall, 451 Mass. 10, 13 (2008), quoting

Commonwealth v. Hood, 389 Mass. 581, 590 (1983). As such, the 

necessity defense may excuse unlawful conduct "where the value 
8

protected by the law is, as a matter of public policy, eclipsed 

by a superseding value . . . ." Kendall, supra, quoting Hood, 

supra.

For a defendant to be entitled to a necessity defense 

instruction, he or she must present "some evidence on each of 

the four underlying conditions of the defense," Kendall, 451 

Mass. at 14: "(1) a clear and imminent danger, not one which is 

debatable or speculative"; (2) [a reasonable expectation that 

his or her action] will be effective as the direct cause of 

abating the danger; (3) there is [no] legal alternative which 

will be effective in abating the danger; and (4) the Legislature 

has not acted to preclude the defense by a clear and deliberate 

choice regarding the values at issue." Id. at 13-14, quoting 

Hood, 389 Mass. at 591. If the defendant satisfies these 

foundational conditions, "the burden is on the Commonwealth to

prove beyond a reasonable doubt the absence of necessity." 

Commonwealth v. Iglesia, 403 Mass. 132, 134 (1988).

The judge focused only on the third element in his denial 

of the defendant's request for a necessity defense instruction 

at the close of all the evidence. The judge ruled that the 

defendant had other available legal alternatives, "motels, and 

hotels, the police station," and that the evidence was lacking 

on the defendant's inability to "rent a hotel room on these 

isolated evenings." We conclude that the judge erred in ruling 
9

that the defendant failed to meet his burden to provide some 

evidence that showed the lack of an available legal alternative 

to the trespasses.

a. Clear and imminent danger. Before we address the third 

element, we review the first element, "clear and imminent 

danger," because the Commonwealth contends that the defendant 

failed to meet the foundational requirement for this element as 

to the seventh offense, which occurred on June 10, 2014.8 

There appears to be little question that the weather 

conditions on the dates of the offenses in February and March 

presented a "clear and imminent danger" to a homeless person.9 

The temperatures on the dates of the offenses were not admitted 

at trial, but the weather on the February and March dates was 

described as "cold," "really cold," and "very cold." Moreover, 

the timing of each of those incidents, in the early morning or 

late evening hours when the defendant was either sleeping or 

lying down, suggests the dangerousness of the circumstances 

 

8 The second and fourth elements of the necessity defense 

are not contested.

9 Citing a report of the National Coalition for the 

Homeless, Winter Homelessness Services: Bringing our Neighbors 

in from the Cold, at 15 (Jan. 2010), the amici assert that 

homeless people routinely face life-threatening conditions in 

the winter, noting that "life-threatening cases of hypothermia 

do not require extreme temperatures; indeed, they often occur 

when the ambient temperature is between [thirty-two] degrees 

Fahrenheit and [forty] degrees Fahrenheit."
10

where sleeping may place one in the same position for an 

extended period and, thus, increases the potential harm from the 

weather. See Jones v. Los Angeles, 444 F.3d 1118, 1138 (9th 

Cir. 2006) ("involuntary sitting, lying, or sleeping on public 

sidewalks . . . is an unavoidable consequence of being human and 

homeless without shelter"). See also In re Eichorn, 69 Cal. 

App. 4th 382, 389 (1998) ("Sleep is a physiological need, not an 

option for humans"). Moreover, the Commonwealth concedes that 

the defendant met his burden of demonstrating a "clear and 

imminent danger" for these six incidents.10

We agree with the Commonwealth that the defendant did not 

meet his burden to show a "clear and imminent danger" for the 

incident on June 10, where the evidence showed only that he had 

to use the bathroom.11 Accordingly, we do not include the 

incident on June 10 in our analysis requirements of the 

availability of "legal alternatives" to trespass.

 

10 The Commonwealth does not contest the "clear and imminent 

danger" element as to the April 8 trespass, therefore, we leave 

for another day whether, as a matter of law, the reported 

temperature, described as "cool," would create a clear and 

imminent danger to a homeless person at noon when he was 

charged.

11 Trial counsel asked the clerk present at the time the 

defendant entered the store whether the defendant said that his 

entry was "an emergency and that he really needed . . . to use 

the bathroom"; she responded, "No, . . . he didn't say anything 

to me." Moreover, the defendant did not request a necessity 

defense instruction on this charge, instead requesting the 

instruction for the charges that occurred "between February and 

let's say April, due to the weather."
11

b. Availability of lawful alternatives. We have explained 

previously that satisfaction of the third element requires a 

defendant to demonstrate that he "ma[d]e himself aware of any 

available lawful alternatives, 'or show[ed] them to be futile in 

the circumstances.'" Kendall, 451 Mass. at 15, quoting 

Commonwealth v. Pike, 428 Mass. 393, 401 (1998). On that point, 

the defendant must present "some evidence," enough that 

"supports at least a reasonable doubt" whether the unlawful 

conduct was justified by necessity. Kendall, 451 Mass. at 14. 

In other words, the defendant must present enough evidence to

demonstrate at least a reasonable doubt that there were no 

effective legal alternatives available before being entitled to 

an instruction on the necessity defense. This does not require 

a showing that the defendant has exhausted or shown to be futile 

all conceivable alternatives, only that a jury could reasonably 

find that no alternatives were available. See Kendall, supra at 

19 (Cowin, J., dissenting), citing Iglesia, 403 Mass. at 135.

The parties agree that this issue is governed by the

Kendall case, but disagree as to its application. In Kendall, 

the defendant had driven while intoxicated to the hospital so 

that he could take his girl friend for medical treatment of a 

serious head wound. Id. at 11-12. He was charged with 

operating a motor vehicle while under the influence of liquor

and requested an instruction on the defense of necessity because 
12

he and his girl friend did not have telephones from which they

could call 911. Id. at 12. A majority of this court affirmed 

the judge's decision to deny the defendant's request because the 

record was "devoid of evidence that the defendant made any 

effort to seek assistance from anyone prior to driving a motor 

vehicle while intoxicated." Id. at 15. Further, the evidence 

demonstrated that at least one neighbor, who lived about forty 

feet from the defendant's residence, was home at the time of the 

incident, that there was a fire station approximately one 

hundred yards from that neighbor's home, and that the defendant

and his girl friend had just left a Chinese restaurant within 

walking distance from the defendant's home. Id. at 11-12. 

Accordingly, the defendant had not met his burden to "present at 

least some evidence at trial that there were no effective legal 

alternatives." Id. at 15. Three dissenting justices disagreed, 

concluding that the defendant had met his burden because his 

conduct was not unreasonable in light of the "risk of failure" 

from the available alternatives; and therefore, weighing the 

propriety of defendant's choice should have been given to the 

jury. Kendall, 451 Mass. at 16, 18, 19 (Cowin, J., dissenting).

Here, the defendant's evidence was sufficient to meet his 

burden under the majority holding of Kendall. In determining 

whether there has been sufficient evidence of the foundational 

conditions to the necessity defense, "all reasonable inferences 
13

should be resolved in favor of the defendant, and, no matter how 

incredible his testimony, that testimony must be treated as 

true." Pike, 428 Mass. at 395. Taken in this light, there is 

at least "some evidence" that the defendant lacked effective 

legal alternatives to trespass during cold days and nights. 

Kendall, 451 Mass. at 15. The defendant testified that he 

stayed at an outdoor gazebo "[p]retty much" year round, that in 

2007 he was told to leave the only local homeless shelter and

had previously been denied entry to the shelter in the middle of 

the night following a blizzard, that no other places "want [him]

in . . . their facility," that he was unable to rent an

apartment despite repeated attempts, and that there was nowhere 

besides public parks where he could stay. Additionally, the 

officer who asked the defendant to leave the Barrington House at 

approximately 9:30 P.M. on February 21 testified that the 

defendant had to go back outside, and the judge sustained an 

objection to defense counsel's question about whether the 

officer offered to transport him to any other shelter or 

facility. The manager of Castle Street corroborated the 

defendant's attempt to rent an apartment by his testimony that 

he called police to have the defendant removed from the building 

after the defendant "forced his way onto the third floor of the 

building, flashing money in hand, demanding I rent him an 

apartment."
14

The Commonwealth argues that the defendant failed to meet 

his burden because he presented no evidence that he was unable 

to rent an apartment outside of Great Barrington, that he was 

unable to gain entry to the Pittsfield shelter, and that he 

would still be excluded from the local homeless shelter in 2014. 

The Commonwealth's argument is unavailing. We do not require an

actor facing a "clear and imminent danger" to conceptualize all 

possible alternatives. Kendall, 451 Mass.at 16 n.5. So long as

the defendant's evidence, taken as true, creates a reasonable 

doubt as to the availability of such lawful alternatives, the 

defendant satisfies the third element. Contrast Kendall, supra; 

Pike, 428 Mass. at 401. The defendant has done so here.

12

Additionally, we note that the options proposed by the 

Commonwealth do not appear to be effective alternatives on the 

record before us. Where the only local homeless shelter had 

previously denied the defendant entry at 3 A.M. following a 

blizzard and had later told him he had to leave, the law does 

not require the defendant to continue to seek shelter there in 

order to demonstrate that doing so is futile. Moreover, the 

 

12 Whether a jury would believe that the defendant had no 

lawful alternative where he could obtain shelter is not an 

appropriate consideration for our analysis. See Commonwealth v. 

Robinson, 382 Mass. 189, 200 (1981), quoting Commonwealth v. 

Campbell, 352 Mass. 387, 398 (1967) ("[t]he fact that the 

evidence may not be of a character to inspire belief does not 

authorize the refusal of an instruction based thereon").
15

defendant's conduct is viewed at the time of the danger, and 

actions that the defendant could have taken to find shelter 

before the dangerous condition arose do not negate the 

conclusion that there were no lawful alternatives available at 

the time of his unlawful conduct. See United States v. 

Kpomassie, 323 F. Supp. 2d 894, 901 (W.D. Tenn. 2004) 

(alternatives not available at time of crime when their 

availability was "sufficiently far in the past").

We do not view the requirement that a defendant consider 

lawful alternatives as broadly as suggested by the Commonwealth. 

Our cases do not require a defendant to rebut every alternative 

that is conceivable; rather, a defendant is required to rebut

alternatives that likely would have been considered by a 

reasonable person in a similar situation.

13 Moreover, we are not 

 

13 As the level of harm that could arise from the unlawful 

conduct increases, so does the requirement for considering 

lawful alternatives. See Commonwealth v. Hutchins, 410 Mass. 

726, 731-732 (1991) (discussing weighing of "competing harms"). 

We recognize that the defendant's conduct may not have been 

appreciated by owners, managers, and residents of the private 

buildings in which the defendant sought cover, but there was no 

evidence that the defendant's presence did, or had the potential 

to, cause physical harm to any persons. Accordingly, the 

requirement to consider alternatives may be viewed more 

leniently where the potential harm was only property-related 

than it would be viewed where the unlawful conduct, as in 

Kendall, 451 Mass. at 15, had the potential to harm both persons 

and property. The doctrine of necessity has its roots in the 

notion that "[t]he law deems the lives of all persons far more 

valuable than any property." United States v. Ashton, 24 F. 

Cas. 873, 874 (C.C.D. Mass. 1834) (No. 14,470).
16

prepared to say as a matter of law that a homeless defendant 

must seek shelter outside of his or her home town in order to 

demonstrate a lack of lawful alternatives.14 Our law does not 

permit punishment of the homeless simply for being homeless.15 

See Commonwealth v. Canadyan, 458 Mass. 574, 579 (2010) (setting 

aside finding that defendant violated condition of probation 

where homeless shelters did not have technology required for 

compliance). Once the foundational requirements are met, the 

necessity defense allows a jury to consider the plight of a 

homeless person against any harms caused by a trespass before 

determining criminal responsibility.

16

 

14 The viability of this option proposed by the Commonwealth 

is hampered for the additional reason that the defendant had no 

driver's license or any other apparent method to make the 

twenty-mile trek to Pittsfield.

15 As of 2014, Massachusetts had the fifth highest number of 

homeless people in the United States. 2014 Annual Homeless 

Assessment Report to Congress, Office of Community Planning and 

Development, U.S. Dep't of Hous. and Urban Dev., Part 1, at 8

(Oct. 2014). A single male, such as the defendant in this case, 

is without emergency shelter options granted by law to other 

residents of Massachusetts. See G. L. c. 23B, § 30 ("the 

[Department of Housing and Community Development] shall 

administer a program of emergency housing assistance to needy 

families with children and pregnant wom[e]n with no other 

children").

16 Allowing a defendant to defend his trespassing charges by 

claiming necessity will not, of course, condone all illegal 

trespass by homeless persons. It simply allows a jury of peers

to weigh the "competing harms" to determine criminal 

responsibility. See Hutchins, 410 Mass. at 730. In Hutchins,

this court reviewed different circumstances where the balance of 
17

Accordingly, in the circumstances of this case, we conclude 

that the judge erred in denying the defendant's request for an 

instruction on the defense of necessity. As the defendant 

satisfied the foundational elements entitling him to the 

defense, the judge's failure to instruct the jury about the 

defendant's principal defense requires a new trial. See 

Commonwealth v. Lapage, 435 Mass. 480, 486 (2001) (ordering new 

trial after judge erred in omitting instruction on principal 

defense). We therefore vacate the defendant's convictions of 

the charges occurring in February, March, and April, 2014.

c. Exclusion of evidence relevant to necessity defense. 

Because it is likely to arise at a retrial, we address the 

defendant's argument that the judge infringed on his ability to 

demonstrate the foundational elements of the necessity defense 

where the judge limited the scope of his questioning on 

 

harms was considered. Id. at 731-732, discussing Commonwealth

v. Thurber, 383 Mass. 328 (1981), and Commonwealth v. Iglesia, 

403 Mass. 132 (1988). Specifically, the court noted that a 

prison escape would likely be justified where a prisoner was in 

imminent danger at the prison and submitted himself directly to 

authorities after escape or where an individual who was

unlawfully carrying a firearm would likely be justified where 

the carrier "wrested the gun" from an attacker and immediately 

went to the police station. Id. Here, whether a homeless 

person's trespass in a privately-owned building where he 

previously had been barred from entry is a greater or lesser

harm than the intrusion suffered by the owner and occupiers of 

the building is a question properly decided by a jury where the 

defendant met the foundational elements for the necessity 

defense. Iglesia, supra at 135 (jury instructed on whether 

defendant made "better choice" by acting illegally).
18

relevancy grounds. Specifically, the judge ruled as 

"irrelevant" questions by defense counsel during crossexamination that related to whether the defendant was asleep or 

intoxicated when trespassing.17 Additionally, the judge 

prohibited counsel from asking officers who responded to the 

trespass calls whether they offered the defendant transportation 

to a shelter. "Evidence is relevant if it renders the desired 

inference more probable than it would be without the evidence." 

Poirier v. Plymouth, 374 Mass. 206, 210 (1978), citing Green v. 

Richmond, 369 Mass. 47, 59 (1975). Relevant evidence may be 

admissible if it "tends to establish the issue" or "constitutes 

a link in the chain of proof." Poirier, supra, quoting 

Commonwealth v. Abbott, 130 Mass. 472, 473 (1881). Here, that 

evidence would be anything that tends to establish any of the 

four elements of the necessity defense. We conclude that the 

questions set forth above speak to the presence of a clear and 

 

17 The defendant contested, on this same ground, several 

other evidentiary rulings where the judge limited inquiry. For 

example, the judge concluded that the defendant's attempt to 

introduce evidence that one of the tenants may have given him 

permission to stay in the common areas of the building was

irrelevant, but that finding also was predicated on the 

defendant's failure to establish that anyone had authority to do 

so. Several objections to the defendant's testimony also were 

sustained where the defendant was nonresponsive and testifying 

in a narrative. Additionally, the judge found questions about 

how the defendant arrived at court that day to be irrelevant, 

but did allow testimony that he did not have a driver's license. 

We do not discern any error in these rulings on the record 

before us.
19

imminent danger, the effectiveness of the defendant's conduct in 

abating that danger, or the availability of alternatives, and 

are therefore relevant.

2. Bias. The defendant argues that the judge improperly 

excluded evidence relevant to bias, depriving him of his right 

to present a full defense under art. 12 of the Massachusetts 

Declaration of Rights. Specifically, the defendant argues that 

the judge erred in limiting his cross-examination of the 

property manager for the Barrington House and the owner of SoCo 

Creamery where trial counsel's questions were designed to show 

bias against him and a potentially illegitimate ground on which 

the no trespass orders were based. We address the issues

relating to the witness for Barrington House because they are 

likely to arise at retrial, and to the witness for SoCo Creamery 

because we have not vacated the defendant's conviction of the

June 10 charge.

As to the property manager for the Barrington House, the 

defendant claims error in the judge's rulings sustaining the 

Commonwealth's objections to the following questions: whether 

the defendant was a "disruption with . . . tenants," whether his 

presence was "annoying to [her] as a property manager," and 

whether he was "trespassed . . . basically because he's on the 

property itself." As to the owner of SoCo Creamery, the 

defendant argues that the judge erroneously prohibited counsel 
20

from asking the owner whether he had "expressed a strong opinion 

that [he] fe[lt] that [the defendant] has no respect for any 

businesses in town" and whether the defendant had "become a 

nuisance in your eyes to your business." The prosecutor did not 

object on any stated ground, the judge did not express his 

reasons for sustaining the objections, and defense counsel did 

not directly respond to the objections.

"The right of a criminal defendant to cross-examine a 

prosecution witness to show the witness's bias, and hence to 

challenge the witness's credibility, is well established in the 

common law, in the United States Constitution," and in art. 12 

of the Massachusetts Declaration of Rights. Commonwealth v. Tam 

Bui, 419 Mass. 392, 400, cert. denied, 516 U.S. 861 (1995). A

judge has "no discretion to bar all inquiry into the subject" of 

bias where the defendant demonstrates there is such a 

possibility. Id. at 400. The defendant must, however, "make a 

'plausible showing' of alleged bias, with a factual basis for 

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

quoting Tam Bui, supra at 401. If the defendant fails to do so, 

the judge has discretion to exclude the evidence. Sealy, supra.

The defendant made no showing at trial of the alleged bias 

and argues on appeal that a per se bias exists against homeless 

persons, which calls into question the legitimacy of the no 

trespass orders. Neither witness testified to the grounds for 
21

obtaining the no trespass orders for Barrington House and SoCo 

Creamery or about any details surrounding the charged conduct.18 

Weighed against the actual testimony provided by these two 

witnesses, there was no error in excluding this line of 

questioning. Where the witnesses did not provide details about 

the basis for the no trespass orders, the legitimacy of the 

orders was not a subject of their testimony and would not have 

been affected by any claimed bias.

3. Prosecutor's closing argument. The prosecutor stated 

in his closing argument that the defendant "testified that he 

was at the Construct up until the first week of March before 

these incidents occur, before then on his own testimony he was

at the Construct." The defendant, however, testified that he 

stayed at the Construct in 2007, not 2014. The defendant argues 

on appeal that this misstatement was prejudicial to his argument 

that he sought shelter during the cold out of necessity. 

Because we assume that this misstatement will not occur at 

retrial and only affects the convictions that we have vacated, 

we do not discuss the claim further.

4. April 8 incident. The defendant argues that the judge 

erred in denying his motion for a required finding of not guilty 

 

18 The no trespass orders for the Barrington House and SoCo 

Creamery were authenticated and introduced during the testimony 

of the two witnesses.
22

on the charge stemming from his presence at Barrington House on 

April 8. Specifically, he argues that his presence in the

publicly accessible common areas of the building during business 

hours is an insufficient basis on which he could be convicted of 

trespassing.

The criminal trespass statute, G. L. c. 266, § 120, 

provides in relevant part, "Whoever, without right enters or 

remains in or upon the dwelling house, [or] buildings . . . of 

another . . . after having been forbidden so to do by the person 

who has lawful control of said premises . . . shall be 

punished." The defendant argues that a guilty verdict requires 

loitering or lingering, and because the record fails to 

establish either, he must be acquitted of the charge. We 

disagree. The criminal trespass statute does not require this 

extra element that the defendant seeks to include.

The defendant's reliance on Commonwealth v. Richardson, 313 

Mass. 632 (1943), is unavailing. In Richardson, the defendants, 

Jehovah's Witnesses, were charged with trespass based on their 

presence in the common area of an apartment building, right 

after they had been directly told that they were prohibited from 

doing so. We concluded that the defendants had an implied 

license to use the common areas of the building to contact 

tenants even without "any proof of direct authority"; and 
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therefore, the defendant's "entry" was lawful.

19 Id. at 639-640. 

The facts of this case are significantly different than those in 

Richardson. Here, it is uncontested that persons with authority 

had banned the defendant from the Barrington House prior to any 

of the charged entries. Accordingly, any license to enter the 

common areas that may have been implied was revoked by the no 

trespass order. See Hood, 389 Mass. at 590 ("Even if 

[defendants] had an implied license to enter based on 

Richardson, they had no right to remain after those with lawful 

control of the property asked them to leave").

The judge did not err in denying the defendant's motion for 

a required finding of not guilty.

5. The defendant's Moffett briefs. The defendant, in what 

he characterizes as briefs filed pursuant to Commonwealth v. 

Moffett, 383 Mass. 201 (1981), raises several claims for our 

review. We have reviewed these issues and conclude that they do 

not merit relief.

6. Conclusion. Because we conclude that the judge erred 

in denying the defendant's request for a jury instruction on the 

defense of necessity for the trespassing charges that occurred 

in February, March, and April, 2014, we vacate those six

 

19 In Commonwealth v. Richardson, 313 Mass. 632, 634-635 

(1943), we noted that G. L. c. 266, § 120 (Ter. Ed.), prohibits 

entry and remaining on a property without right, but the 

defendant had been charged only with unlawful entry.
24

convictions and remand for a new trial. We affirm the 

conviction stemming from conduct that occurred on June 10, 2014.

So ordered.