973 N.E.2d 679
Mass. App. Ct.2012Background
- Pereira was convicted by a jury of open and gross lewdness under G. L. c. 272, § 16.
- On September 9, 2008, police responded to a call near the Sullivan Square MBTA station during rush hour.
- Officer Walsh observed Pereira in a blue Jetta with his pants and underwear down, masturbating in a public area.
- Pereira stepped out of the car and was arrested after an interaction with the officer.
- The defense timely appealed, challenging speedy-trial compliance, sufficiency of the evidence, and several evidentiary rulings.
- The court affirmed the conviction and noted the indecent exposure conviction was dismissed as a lesser included offense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Speedy trial compliance | Pereira | Pereira contends a 2-year 20-day delay violated Rule 36(b) | Trial timely under Rule 36(b) |
| Sufficiency of evidence for shock/alarm | Commonwealth | Walsh's testimony of anger/disgust insufficient for alarm | Rational jury could find alarm; sufficient evidence |
| Evidentiary rulings | Commonwealth argued evidence of plate obfuscation and other testimony admissible | Evidence inadmissible or prejudicial | No reversible error; rulings within court’s discretion; no mistrial required |
Key Cases Cited
- Commonwealth v. Latimore, 378 Mass. 671 (Mass. 1979) (standard for sufficiency review; any rational trier could convict if evidence supports)
- Commonwealth v. Kessler, 442 Mass. 770 (Mass. 2004) (negative emotions may satisfy alarm or shock)
- Commonwealth v. Gray, 40 Mass. App. Ct. 901 (Mass. App. Ct. 1996) (witness disgust or upset can satisfy alarm or shock)
- Commonwealth v. Poillucci, 46 Mass. App. Ct. 300 (Mass. App. Ct. 1999) (witnesses may express negative emotions beyond explicit terms)
- Commonwealth v. Swan, 73 Mass. App. Ct. 258 (Mass. App. Ct. 2008) (witnesses may be upset and nervous; supports alarm finding)
- Commonwealth v. Militello, 66 Mass. App. Ct. 325 (Mass. App. Ct. 2006) (context-specific assessment of shock or alarm)
- Commonwealth v. Adams, 389 Mass. 265 (Mass. 1983) (masturbation in public road tracts to notice of lewdness violation)
- Commonwealth v. Dyer, 460 Mass. 728 (Mass. 2011) (admissibility of evidence tied to identity/consciousness of guilt)
- Commonwealth v. Kee, 449 Mass. 550 (Mass. 2007) (preservation of objections and trial rulings)