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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.
