Opinion
14-P-1174
03-10-2016
COMMONWEALTH v. MARY H. THAMBASH.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from her conviction by a District Court jury of permitting abuse on a disabled person in violation of G. L. c. 265, § 13K(d½), inserted by St. 2004, c. 501, § 8. She argues that a certified record of conviction was erroneously admitted, the Commonwealth's evidence was insufficient, the prosecutor's closing argument was improper, and the judge's instructions were inadequate. We reverse.
Background. Based on the evidence at trial, the jury could have found that, in 2011, the defendant was employed as a van driver for disabled individuals. The defendant's adult son, Dominick Thambash (Dominick), was employed as the van monitor. On October 3, 2011, the defendant was driving six adults from their group home to a day habilitation and employment support program. The passengers included Bonnie Gangi, who testified at trial, and Kerryann Beyer. Beyer is twenty-eight years old and autistic. She is "lower functioning," and she lives with Gangi in a group home.
Gangi testified that, on October 3, 2011, Beyer was sitting in the first row of the van's back seats, within an arm's length of the defendant, when Dominick entered the van, leaned over Beyer, and "smacked" Beyer hard enough to make a very loud noise. The defendant was only about two to three feet away in the driver's seat, but she did not turn around. This was not the first time that Gangi had seen Dominick hit Beyer; in fact, Dominick smacked Beyer in the face "daily." Beyer was always sitting behind the defendant when this happened, and the defendant never did anything to try to stop it. Although the defendant had told Gangi that "what happens on the van stays on the van," Gangi decided to report the incident that day because "enough was enough." Gangi told Gina Jones, the director of day services at the program that she and Beyer attended, that Dominick had struck Beyer. Jones examined Beyer and noticed redness on her left ear. A criminal complaint issued against Dominick, charging assault and battery on a disabled person in violation of G. L. c. 265, § 13K(a½). Another complaint issued charging the defendant with wantonly or recklessly permitting the abuse, in violation of G. L. c. 265, § 13K(d½). On November 21, 2013, Dominick pleaded guilty.
Before the defendant's trial began, and after Dominick invoked his privilege against self-incrimination, the prosecutor sought permission to introduce a certified copy of Dominick's conviction (record). Defense counsel objected on the basis that the record was prejudicial. The prosecutor argued that it was relevant to the element of whether abuse occurred, and the judge said, "Okay" to the prosecutor's request. No further discussion was had on the issue, and the record was admitted at trial. In her closing, the prosecutor relied on the record as evidence that "Dominick did abuse [Beyer] on the bus."
The prosecutor argued, "Dominick did abuse her on the bus. There's a certified conviction that we've entered into evidence that you will have the opportunity to review. Dominick did abuse [Beyer] on the bus."
Discussion. It is well settled that "one person's guilty plea may not be used as substantive evidence of the guilt of another." Commonwealth v. Fernandes, 30 Mass. App. Ct. 335, 337 (1991). General Laws c. 265, § 13K(d½), punishes "[w]hoever, being a caretaker of an elder or person with a disability, wantonly or recklessly commits or permits another to commit abuse, neglect or mistreatment upon such . . . person," and the Commonwealth introduced a certified record of Dominick's guilty plea as substantive evidence that Beyer was abused. Because the error "has constitutional dimensions," Commonwealth v. Alicia, 6 Mass. App. Ct. 904, 905 (1978), we must "reverse the conviction unless the error was harmless beyond a reasonable doubt," Commonwealth v. Rembiszewski, 391 Mass. 123, 126 (1984). See Commonwealth v. Vasquez, 456 Mass. 350, 352 (2010).
Although trial counsel did not object to the judge's pretrial "ruling" or to admission of the record in evidence, we treat the error as preserved. See and compare Commonwealth v. Perryman, 55 Mass. App. Ct. 187, 192 (2002) ("It is black letter law that objections to evidence, or to any challenged order or ruling of the trial judge, are not preserved for appeal unless made in a precise and timely fashion, as soon as the claimed error is apparent"), with Commonwealth v. Wray, 88 Mass. App. Ct. 403, 406 (2015), quoting from Commonwealth v. Morin, 52 Mass. App. Ct. 780, 783 n.3 (2001) (treating error as preserved and declining to "exalt form over substance," where defendant made offer of proof but did not object to judge's adverse ruling).
We cannot say that the error was harmless beyond a reasonable doubt. By virtue of the statute under which the defendant was charged, Dominick's guilty plea "was not inconsistent with the defendant's guilt." Commonwealth v. Fernandes, supra at 339. The risk of prejudice from the erroneous admission of the record was high where it was the defendant's son who pleaded guilty to abusing Beyer, and it was further compounded by the prosecutor's reliance on the record as substantive evidence that "Dominick did abuse [Beyer] on the bus."
Judgment reversed. Finding set aside.
By the Court (Cypher, Wolohojian & Carhart, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 10, 2016.