CO-DEFENDANT’S GUILTY PLEA NOT ADMISSIBLE AT TRIAL
In Commonwealth of Massachusetts v. Palermo (July 11, 2019), the Supreme Judicial Court held that a docket sheet evidencing a co-defendant’s guilty plea for assault with a dangerous weapon should not have been admitted into evidence.
The defendant was convicted of simple assault and threatening to commit a crime, in connection with a multi-person skirmish. During the trial, the defendant testified that he had not seen his co-defendant with a knife. The prosecutor then introduced into evidence a certified copy of the co-defendant’s guilty plea, showing that he had pleaded guilty to assault with a dangerous weapon on the same date. This would tend to show that the defendant was untruthful when he testified that he did not see a knife.
On appeal, the prosecutor argued that the conviction was properly admitted into evidence because it was a non-testimonial business record, and because it was offered for impeachment purposes.
The SJC held that although the docket was a business record that might be excepted from the rule against hearsay, nevertheless the guilty plea contained therein was an additional hearsay statement, and there was no applicable exception to the rule that would render proper its introduction into evidence. See United States v. Mackey, 117 F.3d 24, 28 (1st Cir.), cert. denied, 522 U.S. 975 (1997) (“hearsay statements by third persons . . . are not admissible under [Fed. R. Evid. 803(8)] merely because they appear within public records”).
The Court noted that a record of a conviction may be used to impeach the credibility of the individual convicted, but may not be used to impeach another individual’s credibility: “we are ‘aware of no case . . . in which we have permitted the prior judgment in a case where the defendant was someone other than the current defendant to be used to impeach the current defendant’s credibility.’”
The SJC also found that introduction of the guilty plea violated the Confrontation Clause of the 6th Amendment to the U.S. Constitution, which provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
Because the defendant had no opportunity to confront, i.e., question, his co-defendant during the co-defendant’s trial, “it was constitutional error to allow the introduction of evidence of [his] guilty plea as proof of the facts underlying the conviction.” The SJC noted that had the defendant been able to question his co-defendant, he might have inquired “as to why [he] had pleaded guilty, whether [he] had possessed a knife, or whether that knife would have been visible at the time of the altercation.”
The SJC concluded that the error was constitutional in nature, that defense counsel’s objection at trial had preserved the issue, and that it could not be said that the error “was harmless beyond a reasonable doubt.” Accordingly, the defendant’s convictions were vacated.
Attorney Kevin D. Quinlan
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