Commonwealth v. Peck (Lawyers Weekly No. 11-081-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 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 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 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 […]