Commonwealth v. Knowles, 16-P-1409.

COMMONWEALTH v. LAWRENCE KNOWLES.

No. 16-P-1409.

Appeals Court of Massachusetts

November 3, 2017

January 10, 2018

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Suffolk.

Present: Wolohojian, Massing, & Wendlandt, JJ.

Witness, Cross-examination. Practice, Criminal, Cross-examination by prosecutor, Admissions and confessions, Voluntariness of statement, Waiver. Constitutional Law, Admissions and confessions, Voluntariness of statement, Waiver of constitutional rights. Waiver. Evidence, Cross-examination, Admissions and confessions, Voluntariness of statement.

Complaint 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.

A motion to stay execution of sentence, filed in the Appeals Court on June 24, 2016, was heard by Carhart, J.

Lauren A. Montana for the defendant.

Paul B. Linn, Assistant District Attorney (Amanda Read Cascione, Assistant District Attorney, also present) for the Commonwealth.

MASSING, J. This 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 defendant himself.

A jury 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.¹ Accordingly, we affirm.

Background. 1. Commonwealth's case. At 2:45 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.

The 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."

The 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."

2. Defense witnesses. The 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]ll [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."

The 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.

Dr. 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.² 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.

We set forth the details of the prosecutor's cross-examination of the defense witnesses in the discussion, infra.

Discussion. 1. Cross-examination by innuendo or insinuation. The 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 statement and the third party is not available to testify. Peck, 86 Mass. App. Ct. at 39-40.

An attorney conducting cross-examination must use caution when attempting to impeach a witness with facts not in evidence. To ask such questions, "the examiner should be required torepresent 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." Commonwealth v. Delrio, 22 Mass. App. Ct. 712, 721 (1986). "Without such assurances, the questioning of the witness is improper, for it would amount to allowing the examiner to smear the witness by insinuation." Ibid. See Commonwealth v. Fordham, 417 Mass. 10, 20 (1994), quoting from Commonwealth v. White, 367 Mass. 280, 284 (1975) ("It is error for a prosecutor 'to communicate impressions by innuendo through questions which are answered in the negative . . . when the questioner has no evidence to support the innuendo'").

In Peck, 86 Mass. App. Ct. at 35, the prosecutor asked a defendant accused of automobile insurance fraud "a series of questions about prior incriminating statements she allegedly made to a former boyfriend," in which she admitted and described the fraudulent scheme. Although the prosecutor possessed a report of an interview of the boy friend, prepared by a Massachusetts insurance fraud bureau investigator, the boy friend was neither present in court nor available to testify. Id. at 37-38. Believing that the insurance fraud bureau report gave the prosecutor a good faith basis, the judge permitted the prosecutor to cross-examine the defendant with the details of her confession, over objection and despite the defendant's repeated denial of the statements attributed to her. Ibid.

We held that "[i]t was error to permit this type of cross-examination of the defendant, which improperly impeached the witness by insinuation." Id. at 35. "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.'" Id. at 38, quoting from Commonwealth v. Johnston, 467 Mass. 674, 699 (2014). We further observed that the better practice would have been first to ask the defendant whether she recalled the conversation with the boy friend. Peck, 86 Mass. App. Ct. at 40 n.11. If she did, "the prosecutor could have asked at least one additional question such as whether the defendant made statements about her involvement . . . in a plan...