The Massachusetts Supreme Judicial Court today reversed the convictions of a man who was accused of assaulting and threatening his sister’s ex-boyfriend, concluding the trial judge had committed two reversible errors. The name of the case is Commonwealth v. Palermo.
In November of 2014, the victim pulled into a gas station to fill up his truck. A Jeep pulled in behind him with the defendant in the passenger’s seat. The victim and the defendant disliked one another, owing in part to the victim’s prior romantic relationship with the defendant’s sister. The defendant and the driver of the Jeep, a man named Charles, approached the victim and began hitting his car with their fists. The victim fled in his truck and the other two men followed him, with the defendant now driving the Jeep. The victim drove to his friend Daniel’s house and parked in the driveway. The defendant pulled in behind him, blocking in the truck. Daniel and his wife were sitting on the porch. The defendant and Charles exited the Jeep and began yelling at the victim and banging on his truck. Either the defendant or Charles (there was conflicting testimony as to which) made two threats: one of them warned Daniel to stay on his porch or he would be stabbed (Charles had a knife); and one of them threatened to rape the victim’s mother. The victim finally lowered his window and the defendant allegedly reached into the truck, grabbed the victim’s thumb that had recently been surgically repaired, and attempted to punch the victim in the head. Eventually the cops were called and the defendant and Charles fled. The defendant was charged with assault and battery along with threatening to commit a crime. A Brockton District Court jury convicted him of simple assault and threats and he appealed.
The defendant argued the trial judge made two mistakes that necessitated reversal of his convictions. First, the judge allowed the Commonwealth to introduce a court docket sheet proving that Charles had pleaded guilty to assault with a dangerous weapon for his involvement in the fight. The Commonwealth argued the docket sheet was properly admitted to impeach the defendant, because the defendant testified at trial that Charles did not possess a knife during the fight (which is inconsistent with Charles’s plea to assault with a dangerous weapon). The SJC first concluded the docket sheet constituted hearsay. There were out-of-court statements contained in the docket sheet that the Commonwealth sought to introduce to prove the truth of the matter asserted in the statements (that Charles did, in fact, have a dangerous weapon). The SJC said while the docket sheet could have been used to impeach Charles’s credibility if he had testified, it was improper to use Charles’s docket sheet to impeach the defendant’s credibility. The Court also pointed out that introduction of the docket sheet risked the defendant would be be found guilty by association. There was a danger that introduction of an official-looking court document certifying Charles’s guilt would cause the jury to presume the defendant was also guilty. Therefore, introduction of the docket sheet constituted reversible error.
The SJC also faulted the trial judge for not giving a “specific unanimity” jury instruction. In this case, the defendant allegedly made two threats – to stab Daniel and to rape the victim’s mother. The jury needed to unanimously agree he had committed either (or both) threat(s). If, for example, three jurors believed the defendant had threatened to stab Daniel (but not rape the victim’s mother) and the other three jurors believed the defendant had threatened to rape the victim’s mother (but not stab Daniel), the defendant should not have been convicted of threats because the jury would not have unanimously agreed to the specific threat committed by the defendant. A specific unanimity jury instruction would have made it clear to the jurors that they were required to unanimously agree which threat had been uttered by the defendant.
The defendant’s case will now be returned to Brockton District Court for a new trial.