Heard: November 3, 2017.
received and sworn to in the Central Division of the Boston
Municipal Court Department on January 15, 2014. The case was
tried before Tracy-Lee Lyons, J.
motion to stay execution of sentence, filed in the Appeals
Court on June 24, 2016, was heard by Carhart, J.
A. Montana for the defendant.
B. Linn, Assistant District Attorney (Amanda Read Cascione,
Assistant District Attorney, also present) for the
Present: Wolohojian, Massing, & Wendlandt, JJ.
appeal requires us to apply the rule prohibiting
cross-examination by innuendo, most recently enunciated in
Commonwealth v. Peck, 86 Mass.App.Ct. 34 (2014)
(Peck), to the cross-examination of three defense
witnesses: an expert witness, a lay witness, and the
in the Central Division of the Boston Municipal Court
Department found the defendant guilty of two counts of
unlawful possession of a loaded firearm in violation of G. L.
c. 269, § 10 (a.), (n) . The primary issues at trial
were whether the defendant knowingly possessed the two
firearms found near his truck and, in this regard, whether
his threatening statements to police officers and subsequent
waiver of his Miranda rights were voluntary. We conclude that
the prosecutor's cross-examination of the defendant was
proper and that the cross-examination of the defendant's
lay witness was improper but not prejudicial. We further hold
that Peck does not apply to the cross-examination of
expert witnesses and that the defendant's statements and
Miranda waiver were voluntary.Accordingly, we affirm.
A.M. on January 12, 2014, Boston police Officers Mario
Santillana and Jose Acosta were dispatched to the parking lot
behind a building on Centre Street in the Jamaica Plain
section of Boston. The defendant was seated in the
driver's seat of a parked red truck, alone, crouched down
with his hands folded under his arms, staring straight ahead.
Santillana knocked on the closed window to get the
defendant's attention. The defendant muttered to himself,
looked up at Santillana, and said, "I don't have to
talk to you"; the defendant then resumed his prior
position, staring ahead and mumbling. The officers called for
an ambulance to conduct a wellness check and to see if the
defendant needed help.
officers opened the doors of the truck in an attempt to speak
with the defendant. Santillana did not observe any signs of
alcohol or drug use. The defendant looked Santillana straight
in the eye and said, "I'll shoot you all."
Santillana asked the defendant to repeat himself. The
defendant responded, "I have enough for nine of
you." When the defendant refused the officers'
requests to show them his hands or to get out of the truck,
they attempted to pull him out. He allowed his body to go
limp and nearly fell; the officers pulled him to his feet,
frisked him for weapons, and handcuffed him. He then
"stood up under his own power" and began to speak
clearly to the officers, asking them why he was being
handcuffed. They escorted him to their cruiser, the defendant
walking without assistance, and placed him in the back seat.
When emergency medical personnel arrived, the officers
"waved [them] off . . . because [the defendant] was now
communicating with [the officers] and . . . [they] were able
to go back and forth with him."
officers searched the area around the defendant's truck
and found a revolver, a semiautomatic pistol (both .22
caliber), some marijuana, and a number of the defendant's
personal items on the ground. After finding the first gun,
Acosta recited to the defendant his Miranda rights and asked
if he understood them. The defendant "nodded his head
and he said, '[Y]ep.'" The defendant explained
to the officers that the two guns were a gift from
"[h]is roommate, his girlfriend, Donna, " and
"that they were only 22s and he didn't think he
needed a permit for them."
defendant and Donna Brashears, the woman with whom he was
living in Norridgewock, Maine, at the time of his arrest,
both testified that he did not own or possess any handguns.
The defendant also testified that he suffered constant pain
from a number of injuries, including a broken leg and ankle
sustained during military training in Fort Bragg, North
Carolina, and head injuries from multiple automobile
collisions. He received treatment at the Veterans
Administration hospital (VA hospital) in Togus, Maine, where
"[a]11 [his doctors] want to do is give [him] drugs .
. .I'm a Guinea pig down there." He testified that
he took a number of prescription medicines -- "[f]rom
Tramadol to Meloxicam to codeine to you name it." He
also self-medicated with marijuana, for which he "sent
and got a card, " and "just a couple [of] shots of
whiskey at night."
defendant testified that the day before his arrest he was
driving from Maine to Foxwoods Casino, but he "must have
got detoured in Boston or something" and went to an ice
show at the TD Garden instead. The next thing he remembered
was waking up in a police cruiser. He insisted that he did
not drink and drive, that he had consumed only one shot of
whiskey at "some little bar" near the TD Garden
that day, that he did not take any codeine or sleeping pills,
but that he had smoked some marijuana.
Montgomery Brower, a forensic psychiatrist, offered his
clinical opinion that the defendant "was intoxicated on
alcohol, marijuana, and prescription sedatives at the time of
the alleged incident, " and that his impairment
"did [affect] his abilities that are relevant to
determining whether or not his statements were voluntary and
free." Brower also stated that the defendant suffered
from a "blackout" during police
questioning. In forming his opinion, Brower conducted a
"typical medical examination, " which included
meeting twice with the defendant and reviewing "records
concerning [the defendant's] alleged offense and also his
medical history, " including police reports and medical
reports from the VA hospital and Maine Medical Center.
forth the details of the prosecutor's cross-examination
of the defense witnesses in the discussion, infra.
Cross-examination by innuendo or insinuation.
defendant contends that the prosecutor's
cross-examination of three defense witnesses (Brashears,
Brower, and the defendant) violated the rule against
cross-examination by innuendo, which prohibits impeaching
witnesses with statements they allegedly made to third
parties if the witness denies the ...