Commonwealth v. Palermo, SJC-12639

• Decision Date: 11 July 2019
• Docket Number: SJC-12639
• Citation: 482 Mass. 620,125 N.E.3d 733
• Parties: COMMONWEALTH v. Jason J. PALERMO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

482 Mass. 620

125 N.E.3d 733

COMMONWEALTH

v.Jason J. PALERMO.

SJC-12639

Supreme Judicial Court of Massachusetts, Plymouth..

Argued March 7, 2019

Decided July 11, 2019

Karl R.D. Suchecki (Jennifer M. Petersen also present) for the defendant.

Christina L. Crowley, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

LENK, J.

This case arises from a violent encounter among four men, one of whom had dated the other's sister. In the fight that ensued, the men threw punches, brandished knives, and made statements about one another's mothers. The defendant was charged with one count of assault and battery and one count of threatening to commit a crime. He subsequently was convicted of the lesser included offense of simple assault and threatening to commit a crime.

The defendant argues, first, that the criminal docket of one of his friends, Charles,¹ was admitted improperly as evidence against the defendant. Second, the defendant contends that the jury were not instructed correctly as to which of several alleged incidents constituted the "threat to commit a crime" with which he had been charged, thus permitting the jury to return a verdict of "guilty" without reaching a unanimous consensus as to which facts supported that charge.

We conclude that both claims constitute reversible error. Accordingly, the convictions must be vacated and the matter remanded for a new trial.

Background. Viewed in the light most favorable to the Commonwealth, the jury could have found the following. See Commonwealth v. Platt, 440 Mass. 396, 397, 798 N.E.2d 1005 (2003).

On a Saturday evening in November 2014, Russell drove to a gasoline station to pump gasoline into his truck. He saw a Jeep Cherokee that he believed had followed him into the gasoline station. The Jeep was being driven by Charles, and the defendant rode in the passenger's seat. Russell previously had dated the defendant's sister, and there was ongoing animosity between the two men.²

Russell backed his truck up to move closer to the Jeep and told Charles and the defendant to leave him alone; they got out of the Jeep and began "hitting" and "punching" his truck. Russell locked the doors and drove away. Charles and the defendant followed, this time with the defendant driving. In an attempt to outrun the Jeep, Russell began speeding, but the Jeep also increased its speed, at times following as closely as six inches behind Russell's truck.³

Russell stopped his truck in the driveway of his friend Daniel's house. Daniel and his wife, Carrie, were sitting on the porch. Charles and the defendant parked the Jeep directly behind Russell. Russell locked the doors and remained in his truck, while the defendant and Charles got out of the Jeep and approached the truck, the defendant on the driver's side and Charles on the passenger's side. The two men began yelling at Russell and banging on the windows and doors.

Russell and Daniel testified that Charles warned Daniel to stay on the porch, or Charles would stab him. Carrie, however, recalled the defendant as the one who warned Daniel to "go back in the house" or the defendant would stab him. Charles had a knife; the defendant did not.

Russell testified that, at one point, Charles told him that Charles "was going to rape [his] mother and kill [his] father," and that "he went to jail for rape and he'll do it again." Carrie testified that it was the defendant who told Russell that "he was going to go to [Russell's] house and rape his mother in the ass." The defendant recalled telling Russell something to the effect of, "[G]et out of the truck and fight me."

At one point, Russell partially lowered the driver's side window, in an effort to communicate better with the defendant. The defendant placed his hand in the crack between the window and the frame, pushed the window down, reached into the truck, and grabbed Russell's hand, grasping a thumb that recently had been surgically reattached. The defendant grazed Russell's head in an attempt to punch him.

Ultimately, Daniel came down from the porch and tackled the defendant. The two rolled around on the ground and threw punches. While this was going on, Carrie called the police, and Russell climbed out of the window of his truck. Charles eventually pulled the defendant away from Daniel.

Charles and the defendant ran back to the Jeep and drove away.⁴ That Monday, the defendant went to the police station to file a report concerning his injuries and the damage to the vehicle.

The defendant was charged with one count of assault and battery, G. L. c. 265, § 13A (a ), with respect to Russell, and one count of threatening to commit a crime, G. L. c. 275, § 2. He was not charged with assaulting Daniel, the man with whom he had fought in the bushes.

At trial, the defendant testified on his own behalf. On cross-examination, he maintained that, during the altercation in Daniel's driveway, he did not see Charles get out of the Jeep until Charles "got out of the car to help me up" from the ground. "That was the only time I seen him out of the car." The defendant also testified that he did not see Charles take out a knife. The prosecutor then sought to introduce a copy of the certified criminal docket in Charles's case, which reflected that Charles had pleaded guilty to assault by means of a dangerous weapon for an incident charged on the same day in November 2014 as the incident with which the defendant was charged. The judge allowed the evidence to be introduced, over the defendant's objection.

The jury returned a verdict of guilty on the lesser included offense of simple assault and the offense of threatening to commit a crime. The defendant was sentenced to eighteen months of supervised probation on each charge, to run concurrently.

Discussion. On appeal, the defendant raises two claims of error. First, he argues that the certified docket sheet from Charles's case should not have been admitted. Second, he argues that the jury should have been given a specific unanimity instruction with respect to the offense of threatening to commit a crime.

1. Introduction of certified criminal docket. The defendant objected to the admission of the certified criminal docket sheet on the grounds that the evidence constituted hearsay, violated his right to confrontation, and was substantially more prejudicial than probative.

a. Hearsay. An out-of-court statement is considered hearsay, and ordinarily is not admissible, where it is offered to prove the truth of the matter asserted therein. See Commonwealth v. Purdy, 459 Mass. 442, 452, 945 N.E.2d 372 (2011). See also Mass. G. Evid. § 801(c) (2019).

The docket sheet in Charles's case reflected that he pleaded guilty to committing an assault by means of a dangerous weapon on the day of the altercation at issue here. There is no question that the Commonwealth offered the statements for their truth. The Commonwealth sought to use the plea as evidence that Charles had, in fact, possessed a dangerous weapon -- in particular, a knife -- on that day. The docket sheet was to be used to challenge the defendant's credibility, as the defendant had testified that he had not seen Charles with a knife. The judge allowed the introduction of the criminal docket for its truth, as a "public document, certified, as an exception to the hearsay rule."⁵ See Mass. G. Evid. § 803(8) (2019).

Regardless of whether the docket itself might have been admissible, the statements contained within it nonetheless constitute a second layer of inadmissible hearsay. Charles's guilty plea is a statement independent of the docket within which it is memorialized. See Julian v. Randazzo, 380 Mass. 391, 394, 403 N.E.2d 931 (1980) (statements contained within reports may be inadmissible as "second level" hearsay). "[E]vidence based on a chain of statements is admissible only if each out-of-court assertion falls within an exception to the hearsay rule" (citation omitted). Commonwealth v. Cassidy, 470 Mass. 201, 216, 21 N.E.3d 127 (2014). See United States v. Mackey, 117 F.3d 24, 28 (1st Cir.), cert. denied, 522 U.S. 975, 118 S.Ct. 431, 139 L.Ed.2d 331 (1997) ("hearsay statements by third persons ... are not admissible under [ Fed. R. Evid. 803(8) ] merely because they appear within public records"). Without an exception for this second level of hearsay, the substance of Charles's plea should not have been admitted.

Section 803(22) of the Massachusetts Guide to Evidence (2019) is instructive as to the admissibility in a criminal trial of a guilty plea.⁶ See Flood v. Southland Corp., 416 Mass. 62, 70, 616 N.E.2d 1068 (1993) (adopting principles of Proposed Mass. R. Evid. 803[22] ). Under § 803, a guilty plea may be admissible where it constitutes a prior judgment "against the defendant." See Mass. G. Evid. § 803(22)(D). When offered by the Commonwealth in a criminal case, however, prior judgments against individuals other than the defendant are not admissible "for a purpose other than impeachment."

Id. See, e.g., Commonwealth v. Powell, 40 Mass. App. Ct. 430, 435-437, 665 N.E.2d 99 (1996) (joint venturer's guilty plea not admissible to prove armed robbery had transpired).

The Commonwealth argues on appeal that it sought to use Charles's guilty plea not as substantive evidence but, rather, to impeach the defendant's credibility. Had Charles testified, the Commonwealth might have been permitted to use Charles's guilty plea to impeach his credibility. See Mass. G. Evid. § 609 (2019). See also Commonwealth v. Supplee, 45 Mass. App. Ct. 265, 268, 697 N.E.2d 547 (1998) (prior conviction of witness appropriately may be used "to impeach the credibility of that witness" [emphasis in original] ). Cf. Commonwealth v. Roderick, 429 Mass. 271, 274-275, 707 N.E.2d 1065 (1999) (defendant's prior conviction was admissible to impeach credibility of defendant-witness). We are aware of no case, however, in which we have permitted the prior judgment in a case where the defendant was...