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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

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 

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 crossexamination, 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 crossexamination 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. 

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 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.