Commonwealth v. Peck , 86 Mass. App. Ct. 34 ( 2014 )

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12-P-132 Appeals Court
COMMONWEALTH vs. MELISSA PECK.
No. 12-P-132.
Berkshire. March 12, 2014. - July 16, 2014.
Present: Vuono, Grainger, & Agnes, JJ.
Practice, Criminal, Cross-examination by prosecutor, Loss of
evidence by prosecution, Preservation of evidence.
Evidence, Cross-examination, Prior inconsistent statement,
Impeachment of credibility, Expert opinion, Exculpatory.
Witness, Cross-examination, Impeachment, Expert. Fraud.
Insurance, Defrauding insurer, Motor vehicle insurance.
Motor Vehicle, Insurance. Conspiracy. Larceny. Attempt.
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, submitted a
brief for the Commonwealth.
AGNES, J. At trial, the defendant, Melissa Peck, testified
as the only witness for the defense and denied the allegations
2
that she and her former husband had engaged in an automobile
insurance fraud. 1 On cross-examination, over objection, the
judge permitted the prosecutor to ask her a series of questions
about prior incriminating statements she allegedly made to a
former boyfriend, 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. It was error to permit this type of
cross-examination of the defendant, which improperly impeached
the witness by insinuation, and unfairly "cast on the other side
(here the defendant-witness) a burden somehow to fend against
it." Commonwealth v. Delrio, 22 Mass. App. Ct. 712, 721 (1986).
Because we determine that the improper cross-examination was
prejudicial, we must reverse the convictions. 2
Background. The jury could have found that on July 14,
2008, the defendant parked her car on North Street in front of
1
The defendant was charged by complaint with filing a false
motor vehicle insurance claim, in violation of G. L. c. 266,
111B; conspiracy in violation of G. L. c. 274, § 7; attempt to
commit a crime, in violation of G. L. c. 274, § 6; and making a
false report of a motor vehicle theft, in violation of G. L.
c. 268, § 39. On July 18 and 19, 2011, the defendant was tried
before a jury of six. On July 20, 2011, the jury found the
defendant guilty on all four counts.
2
Based on this conclusion, it is unnecessary to consider
other issues raised by the defendant with the exception of her
claims that the Commonwealth is responsible for the loss of
evidence and that there was insufficient evidence, both of which
we discuss, infra.
3
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 defendant'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 would tow and
impound her car.
The defendant returned to the car after her trip to city
hall. John Tart, her former husband, was at that location. A
surveillance video played for the jury reveals the defendant and
Tart near the car. She is seen removing a child's car seat from
the car while Tart walks over to the booted wheel. The video
also reveals the defendant walking over and standing next to
Tart for approximately twenty seconds as he crouches down near
3
Officer Siok testified that due to the type of wheel on
the defendant's car, the boot did not fit as tightly as it was
designed to and that it was possible for a person to remove it
by "shak[ing] it off."
4
the booted wheel. The defendant then walks away from the car,
and about thirty seconds later, Tart is seen entering the car
and driving away.
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
5
keys to the vehicle in the glove box. 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
4
The vehicle was co-owned by the defendant and Tart and
registered to both of them. However, the vehicle was under the
control of the defendant, who allowed Tart to drive it from time
to time. The defendant had two sets of keys to the vehicle.
Tart did not have a set of keys.
5
The defendant testified that she kept one set of keys and
locked the other in the vehicle's glove box.
6
Both the defendant and Sergeant Linehan signed the report.
Linehan later entered the data into the national criminal
information system's registry of stolen vehicles and filed a
copy of the report with his department. The report was received
in evidence.
5
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 appearance 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 she spoke to Tart the day after she was
interviewed by Sergeant Linehan and told him that he had to file
a claim with the insurer so she could qualify for reimbursement
for the cost of renting another vehicle. The insurer denied the
defendant's insurance claim and reported the case to the
insurance fraud bureau of Massachusetts (fraud bureau) for
investigation.
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 surveillance 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
6
several times to identify the male shown in the video. She
refused, telling him, "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
7
Unfortunately, the ensuing sidebar conversation was
inaudible and there is no transcript of what was said. However,
the judge allowed a motion by the Commonwealth to expand the
record to include an account of the sidebar discussion supplied
by the prosecutor. The prosecutor's affidavit states that a
timely objection was made by defense counsel to any inquiry of
the defendant concerning conversations with Sanchez because
Sanchez was not present. The prosecutor told the judge that he
had a good faith basis for the inquiry because he had a fraud
bureau report that contained an interview with Sanchez, and he
intended to ask only leading questions based on the contents of
that fraud bureau report. According to the prosecutor's
affidavit, the judge ruled that the prosecutor had a good faith
basis and could "ask the Defendant if she recalled certain
specifics of that conversation [with Sanchez]. He [the judge]
7
because the prosecutor had a report in which Sanchez told the
police and the fraud bureau that the defendant had confessed to
her involvement in the insurance fraud scheme with Tart, there
was a good faith basis for the prosecutor to inquire of the
defendant about the conversation even though Sanchez was not
present to testify. Accordingly, the prosecutor asked the
defendant five questions about the conversation she reportedly
had with Sanchez. These questions are set forth below in the
margin. 8 Sanchez did not appear or give testimony at trial. The
also noted that given Sanchez's absence, [the prosecutor] would
'be stuck with [the defendant's] answers.'"
8
At trial, the prosecutor had the following exchange with
the defendant on cross-examination:
Q.: "Do you recall discussing with [Sanchez] 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."
8
report of his interview was not offered as an exhibit or marked
for identification although the prosecutor showed it to the
judge at sidebar.
Massachusetts evidence law prohibits "an attorney, through
cross-examination 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
a series of questions on cross-examination about inculpatory
statements the defendant allegedly made to an inmate who had
been in jail with the defendant. The defendant had not referred
to any conversation with the inmate during direct examination.
The inmate was not called as a witness. The defendant denied
making each of the statements. The Supreme Judicial Court
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 all?"
A.: "Absolutely not."
9
described this approach as "an improper tactic which has often
been condemned by the courts." Id. at 561 (quotation omitted).
See Commonwealth v. Johnson, 431 Mass. 535, 541 n.3 (2000)
("Rule 3.4(e) of the Massachusetts Rules of Professional
Conduct, 426 Mass. 1389 (1998), states: "A lawyer shall not:
. . . (e) in trial, allude to any matter that . . . will not be
supported by admissible evidence"). 9
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
improper.
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
9
As in Commonwealth v. Fordham, 417 Mass. 10, 21 (1994),
"[i]t is extremely unlikely that the prosecutor in this case
expected an affirmative answer to his question or that his
purpose in asking it was to gain an admission. Rather, it
appears that he was using cross-examination to communicate an
impression (and perhaps also to imply that he, the prosecutor,
had some as yet undisclosed information) by innuendo."
10
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 belief that the facts implied by the questions could
be established by admissible evidence. See Commonwealth v.
10
Marsh, 354 Mass. 713, 720 (1968). In the present case, as in
Christian, 430 Mass. at 561-562, the prosecutor's questions had
the effect of informing the jury of the contents of out-of-court
statements allegedly made by the defendant that were not
admissible because (1) the witness who reportedly heard them and
could have testified about them did not testify, see Mass. G.
Evid. § 801(d)(2)(A) (2014) (admission of a party opponent), and
(2) the defendant under cross-examination denied making them so
that they did not qualify as prior inconsistent statements. See
Mass. G. Evid. § 613(a)(1) (2014). 11
10
We also note that it is error for a judge to overrule an
objection where a prosecutor's leading questions effectively
offer extrajudicial testimony as evidence through innuendo and
insinuation. See, e.g., Commonwealth v. Fordham, 417 Mass. at
20-21; Commonwealth v. Francis, 432 Mass. 353, 363 (2000);
Commonwealth v. Stewart, 454 Mass. 527, 531-532 (2009);
Commonwealth v. Benoit, 32 Mass. App. Ct. 111, 115-117 (1992);
Commonwealth v. Wynter, 55 Mass. App. Ct. 337, 341-343 (2002).
11
The principle at stake in this case, as explained in the
Christian, White, and Delrio cases, among others, would not have
been offended by an open-ended question about whether the
11
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 moment 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
defendant recalled a conversation with Sanchez about the charges
against her. If the defendant responded by stating a failure of
memory, the prosecutor could have refreshed her memory using the
statement given by Sanchez. See Mass. G. Evid. § 612(a) (2014).
If the defendant recalled such a conversation, the prosecutor
could have asked at least one additional question such as
whether the defendant made statements about her involvement with
Tart in a plan to defraud the insurer.
12
As in Commonwealth v. Stewart, 454 Mass. at 533 n.6, in
view of the result we reach, there is no need to address the
applicability of Crawford v. Washington, 541 U.S. 36 (2004).
12
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. Mass.R.Crim.P. 25, as amended, 420
Mass. 1502 (1995). In assessing the sufficiency of the
evidence, we view it in the light most favorable to the
Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677
(1979). It is well established that "a conviction may be
properly based entirely on circumstantial evidence so long as
that evidence establishes the defendant's guilt beyond a
reasonable doubt." Commonwealth v. Pike, 430 Mass. 317, 321
(1999), quoting from Commonwealth v. Martino, 412 Mass. 267, 272
(1992). "To survive a motion for a required finding, it is not
essential that the inferences drawn are necessary inferences.
It is enough that from the evidence presented a jury could,
within reason and without speculation, draw them." Commonwealth
v. Gonzalez, 47 Mass. App. Ct. 255, 257 (1999).
13
In his final charge to the jury, the judge stated that "a
lot of questions were asked of various witnesses during the
course of this trial. 'Isn't it true that this happened? Isn't
it true that that happened? Is it true the next thing
happened?' And if the answers were no, it's not, even if you
believe, even if you think that the person wasn't telling the
truth, it's not affirmative evidence that the other thing
happened."
13
a. Conspiracy. The defendant was charged with conspiracy,
a crime prohibited by G. L. c. 274, § 7. "The acts of different
persons who are shown to have known each other, or to have been
in communication with each other, directed towards the
accomplishment of the same object, especially if by the same
means or in the same manner, may be satisfactory proof of a
conspiracy.'" Commonwealth v. Nee, 458 Mass. 174, 181 (2010)
(quotation omitted). In this case, there was ample
circumstantial evidence to permit the jury to find beyond a
reasonable doubt that the defendant and Tart acted together and
participated knowingly in a scheme to file a false motor vehicle
insurance claim and make a false report of motor vehicle theft
in order to defraud an insurance company.
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 participated 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 G. L. c. 266,
§ 111B, if she "ma[kes] a claim under a motor vehicle insurance
policy, with intent to defraud the insurer, by furnishing the
insurer false statements in order to obtain payment of insurance
14
proceeds." Commonwealth v. Chery, 36 Mass. App. Ct. 913, 913
(1994). Here, the evidence described above established that the
defendant had a motive, and actively participated in the events
involving the staging of a false theft of her vehicle, falsely
reported it stolen, and thereby facilitated the filing of a
false insurance claim by Tart.
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
G. L. c. 268, § 39. The statute requires proof "that the
defendant 'knowingly' ma[d]e a false written statement on a form
bearing notice that false statements made therein are punishable
under the penalty of perjury." Commonwealth v. Kelly, 69 Mass.
App. Ct. 751, 754-755 (2007). It was sufficient that the
perjury warning in this case was clearly visible on the stolen
motor vehicle form, located immediately above the signature line
in boldface, prefaced by the word "warning" in large, capital
letters. See id. at 755.
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
15
intent to commit 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 vehicle. Here, the defendant has not met her
burden of establishing that there was a reasonable possibility
that if the vehicle had not been discarded it would have yielded
favorable evidence for the defense. See Commonwealth v.
14
General Laws c. 266, § 30, "merged into one crime,
larceny, what had formerly been three separate crimes: larceny
by stealing, embezzlement, and larceny by false pretenses.
Larceny can be established by evidence warranting a conviction
on any of the three theories." Commonwealth v. Cheromcka, 66
Mass. App. Ct. 771, 773 (2006) (citation omitted).
16
Dinkins, 440 Mass. 715, 717 (2004); Commonwealth v. Kee, 449
Mass. 550, 554-555 (2007).
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 also 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.