COMMONWEALTH vs. MELISSA PECK.
No. 12-P-132.
Appeals Court of Massachusetts
March 12, 2014 - July 16, 2014.
86 Mass. App. Ct. 34 (2014)
Vuono, Grainger, & Agnes, JJ.
Berkshire.
At a criminal trial, the judge erred in permitting the prosecutor, over objection, to ask the defendant on cross-examination a series of questions about prior incriminating statements she allegedly made to her former bоyfriend, after the date of the alleged offenses, despite the fact that the judge was aware that the Commonwealth did not have admissible evidence from another witness that the statements had been made; further, this court could not say that the error did not influence the jury or had but very slight effect, where there was no direct evidence tying the defendant to the crime other than the inference from the prosecutor‘s improper сross-examination. [37-40]
At the trial of a criminal complaint, the evidence at the close of the Commonwealth‘s case, viewed in the light most favorable to the Commonwealth, was sufficient to establish the defendant‘s guilt beyond a reasonable doubt on charges of conspiracy, the filing of a false motor vehicle insurance claim, the false report of a motor vehicle theft, and an attempt to commit larceny. [41-42]
The сriminal defendant failed to meet her burden of establishing that there was a reasonable possibility that if the prosecution had not disposed of certain evidence, it would have yielded evidence that would have been favorable to the defense. [42-43]
Complaint received and sworn to in the Pittsfield Division of the District Court Department on November 25, 2009.
The case was tried before Fredric D. Rutberg, J.
Esther J. Horwich (Justin R. Dashner with her) for the defendant.
James F. Petersen, Assistant District Attorney, for the Commonwealth, submitted a brief.
AGNES, J. At trial, the defendant, Melissa Peck, testifiеd as the
Background. The jury could have found that on July 14, 2008, the defendant parked her car on North Street in front of the Berkshire Medical Center (BMC) in Pittsfield. While she was inside the BMC, Pittsfield parking authority Officer Thomas Siok checked the license plate numbers of the cars parked on North Street and discovered that the defendant‘s vehicle had several unpaid parking tickets. Siok followed parking authority protocol and attached a “boot” to the dеfendant‘s car. This device is designed to prevent a vehicle from being moved until the appropriate authority unlocks and removes it.3
The defendant got a ride to city hall to pay the parking tickets. There, she learned that the total amount she owed was more than she expected, and that she could not pay with a personal check. The defendant was told that unless the unpaid tickets were paid within three days, the city wоuld tow and impound her car.
The next day, Pittsfield police Sergeant Mark Lenihan received a call from the Pittsfield parking authority inquiring about the defendant‘s booted car; both the car and the boot were missing. Sergeant Lenihan visited the defendant at her home to ask about the location of her car.4 The defendant told Sergeant Lenihan that she had last seen the car parked on North Street with a parking boot attached to it, and had no knowledge of what had happened thereafter. She indicated she had left one set of keys to the vehicle in the glove box.5 The defendant completed the paperwork necessary to make a stolen car report while Sergeant Linehan was present.6
On July 19, 2008, the defendant‘s car was located in a State forest. The windows of the car were smashed, the tires were slashed, there was collision damage, there were beer bottles in the car, and the ignition was damaged with exposed wires. However, there was testimony that the vandalism and ignition damage were not consistent with theft. The jury heard testimony from a forensic mechanic and saw photographs of the vehicle‘s appeаrance when it was recovered. The jury could have found that the vehicle was made to look like it had been stolen.
The defendant was interviewed by the insurer‘s fraud investigator in August, 2008. At that time, she said she had both sets of keys to her vehicle in her physical possession. She also said that
In May, 2009, the defendant was interviewed by a senior investigator with the fraud bureau. She told the investigator that she had done nothing wrong and gave him an exculpatory account of the events on the day in question. The investigator played for her the video surveillаnce tape, which showed that less than one minute after the defendant walked away from the vehicle, it was driven away by Tart. The investigator asked her several times to identify the male shown in the video. She refused, telling him that “she can‘t say and she won‘t say,” and that it was his “job to figure out who that male was.” The defendant was interviewed again by the investigator in July, 2009, at the Pittsfield police station. The defendant was advised of her Miranda rights and agreed to speak to the police and the investigator. Her statements were identical to those she made during the previous interview.
Discussion. 1. Improper cross-examination. On cross-examination, the prosecutor established that the defendant‘s former boyfriend, Junior Sanchez, drove her and her daughter to the interview with the investigator in May, 2009. There was an objection prior to any questions being asked about a conversation between the defendant and Sanchez on that occasion. During an unrecorded sidebar conversation,7 the judge ruled that because the prosecutor had a report in which Sanchez told the police and
Massachusetts evidence law prohibits “an attorney, through cross-examinatiоn of a witness, [from] communicat[ing] an impression by innuendo that he or she possesses as yet undisclosed information, with no good faith basis for doing so.” Commonwealth v. Johnston, 467 Mass. 674, 699 (2014), citing Commonwealth v. Christian, 430 Mass. 552, 561 (2000), overruled on other grounds by Commonwealth v. Paulding, 438 Mass. 1 (2002). In Christian, supra at 559-563, the defendant was asked
The Commonwealth maintains that the cross-examination in this case was not impermissible because there was a good faith basis for the questions at issue even though the person to whom the defendant allegedly made the statements, Sanchez, did not testify. While we agree that the prosecutor acted appropriately by informing the judge that Sanchez was not available to testify and by providing the judge with a copy of the report containing Sanchez‘s statements, the cross-examination was nevertheless imprоper.
The Commonwealth relies on the observation in Commonwealth v. White, 367 Mass. 280, 285 (1975), that “[a] criminal defendant is not denied a fair trial by rigorous cross-examination of witnesses concerning their prior inconsistent statements, unless the examination is shown to have been conducted in bad faith or without foundation.” However, the requirement noted in White (that the examiner must have a good faith basis and proper foundation for cross-examination) is simply another way of saying that the examiner must have a reasonable bеlief that the facts implied by the questions could be established by admissible evidence. See Commonwealth v. Marsh, 354 Mass. 713, 720 (1968).10 In the present case, as in Christian, 430 Mass. at 561-562, the prosecutor‘s questions had the effect of informing
Because the error was preserved, we must determine whether “the error did not influence the jury, or had but very slight effect.” Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting from Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983) (nonconstitutional error).12 The defendant, who was the sole witness for the defense, was prejudiced by the improper insinuations and innuendo. Although the case against the defendant was a solid circumstantial case in that the Commonwealth supplied evidence of her motive and her interaction with Tart only a momеnt before he drove away in the vehicle, there was no direct evidence tying her to the crime other than the inference resulting from the prosecutor‘s improper cross-examination. The repeated and improper insinuations struck at the heart of the defense by suggesting that the defendant confessed to the crimes charged. This is not a case in which the jury received strong curative instructions at the time, and during the judge‘s final charge there was only a general instruction that questions are not evidence.13
2. Sufficiency of the evidence. At the close of the Commonwealth‘s case, the defendant filed a motion for a directed finding on all charges.
a. Conspiracy. The defendant was charged with conspiracy, a crime prohibited by
b. False motor vehicle insurance claim. The defendant could have been convicted of filing a false motor vehicle insurance claim under a theory of joint venture. A defendant can be convicted of a crime as an aider and abettor if “the defendant knowingly participatеd in the commission of the crime charged, alone or with others, with the intent required for that offense.” Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009). A defendant commits insurance fraud as defined by
c. False report of motor vehicle theft. Contrary to the defendant‘s argument, there was sufficient evidence that she filed a false report of motor vehicle theft in violation of
d. Attempt to commit a crime. There was also sufficient evidence that the defendant attempted to commit larceny against the insurance company. “The crime of attempt consists of the intent to cоmmit the underlying crime coupled with an overt act.” Commonwealth v. Horton, 434 Mass. 823, 836 (2001).14
Here, the evidence was more than sufficient for a jury to conclude beyond a reasonable doubt that the defendant and Tart worked together to stage a false theft of her vehicle, to falsely claim to the police that it had been stolen, and to file a false report with the insurance company with the intent to defraud and financially injure the insurance company by attempting to collect an insurance award that she was not entitled to receive.
3. Expert witness testimony about lost evidence. The charges against the defendant were not filed until after her vehicle was released to her insurer and sold at auction. She argues that in such circumstances it was error to allow the Commonwealth‘s expert to testify about the condition in which her vehicle was found without an opportunity to have a defense expert examine the vehiсle. Here, the defendant has not met her burden of establish-
Conclusion. In Commonwealth v. Delrio, 22 Mass. App. Ct. at 721, we said that “[w]here an examiner on cross-examination suggests new facts in an effort to impeach a witness, the examiner should be required to represent that he has a reasonable basis for the suggestion, and alsо to be prepared with proof if the witness does not acquiesce in the suggestion by giving a self-impeaching answer.” In this case, the judge was aware that the Commonwealth did not have admissible evidence of the defendant‘s out-of-court statements, and thus should not have permitted the prosecutor to ask her a series of questions insinuating that she had admitted her complicity in a scheme to defraud her insurer. Because there was a timely objection and the improper questions caused prejudice, the convictions must be reversed.
Verdicts set aside.
Judgments reversed.
Notes
Q.: “Do you recall discussing with [Sanchеz] yours [sic] and John Tart deciding to make this look like a stolen motor vehicle?”
A.: “Absolutely not.”
Q.: “Do you recall telling [Sanchez] that [Tart] and his brother Jesse were going to take the truck to their mother‘s address and vandalize it, put a bunch of empty beer bottles to make it look like a bunch of kids stole it?”
A.: “Absolutely not.”
Q.: “Do you recall telling [Sanchez] that they were going to rip the steering column out and make it look hotwired so it could start again and bring it to an area where they know there had been stolen motor vehicles in the past?”
A.: “Absolutely not.”
Q.: “Do you remember specifically telling [Sanchez] that when you filled out the report at Pittsfield Police Department you knew, in fact, it was not stolen?”
A.: “Absolutely not.”
Q.: “Do you remember stating to him that you had no, excuse me, that if ever caught, [Tart] would take the blame, say you have no knowledge of this, if anything goes down you, he will take the whole blame, that you won‘t go to jail or lose your job at аll?”
A.: “Absolutely not.”