Com. v. Coviello

• Decision Date: 31 January 1979
• Parties: COMMONWEALTH v. Stephen L. COVIELLO.
• Court: Appeals Court of Massachusetts

Page 1265

384 N.E.2d 1265

7 Mass.App.Ct. 21

COMMONWEALTH v. Stephen L. COVIELLO.

Appeals Court of Massachusetts, Middlesex.

Argued Jan. 11, 1979.

Decided Jan. 31, 1979.

John C. McBride, Everett, for defendant.

Susan C. Mormino, Asst. Dist. Atty., for the Commonwealth.

Before GRANT, ROSE and GREANEY, JJ.

GRANT, Justice.

The defendant has appealed from his convictions on both counts of an indictment for rape. ¹ Two questions of evidence have been argued.

1. The first question is as to the propriety of a ruling by the trial judge which precluded defense counsel from eliciting any evidence of the defendant's previous convictions in the course of counsel's direct examination of the defendant. That ruling must be considered in the context of the pattern of the evidence and proceedings at trial.

There was evidence (principally in the form of the testimony of the victim named in both counts of the indictment) from which the jury could have found that the victim and a female companion spent the major portion of a Friday evening in a cocktail lounge; that while at the lounge the victim became acquainted with the defendant; that toward the end of the evening the victim became separated from her female companion; that the victim accepted the defendant's offer to drive her home in his car; that the defendant drove the car to a nearby secluded area, where he beat the victim and forced her to fellate him and to submit to vaginal intercourse; and that the defendant climaxed his activities by masturbating in the presence of the victim. The defendant took the stand and denied that he had beaten the victim, denied any act of fellatio or masturbation, admitted that he had had vaginal intercourse with the victim while with her in the car, and testified that such intercourse had been consensual.

Counsel for the defendant advised the jury in his opening statement, made before the prosecution called its first witness, that the defendant would testify in the manner already related. Counsel did so with knowledge that the defendant would be embarrassed by convictions which would be admissible in evidence under G.L. c. 233, § 21, and that the convictions included one of assault and battery, one of open and gross lewdness and lascivious behavior (G.L. 272, § 16), and two of being a wanton, lewd and lascivious person in speech and behavior (G.L. c. 272, § 53). At the opening of the second day of the trial counsel presented a motion to suppress all evidence of the defendant's prior convictions. See Commonwealth v. Chase, 372 Mass. ---, --- - --- ^A, 363 N.E.2d 1105 (1977). The motion was heard in the absence of the jury and was denied. The defendant has not argued to us that it was error to deny the motion. We mention the motion only because it was at that time that the judge was advised of the general nature of the defendant's convictions.

Counsel for the defendant then attempted to bring the convictions out during his direct examination of the defendant. When the assistant district attorney objected, the judge excluded counsel's inquiry with the remark that "(t)he thing which prohibits you is the rule that says you can't impeach your own witness." ² The defendant duly excepted. All four convictions were brought out during the assistant district attorney's cross examination of the defendant: the two convictions of being a wanton, lewd and lascivious person in speech or behavior were introduced immediately following the defendant's contradiction of the testimony of the victim's female companion to the effect that the defendant had also masturbated in her presence; ³ the convictions of assault and battery and of open and gross lewdness and lascivious behavior were introduced as soon as the defendant denied that he had beaten the victim. In both instances, and in the charge, the judge properly instructed the jury as to the purpose for which they could consider the convictions.

In Commonwealth v. Cadwell, 373 Mass. --- ^B, 372 N.E.2d 246 (1978), the defendant, who was on trial for murder in connection with the beating death of a small child, objected when the prosecution started to elicit testimony from the child's mother, who had also been indicted for murder in connection with the same death, that "she had pleaded guilty to being an accessory to the crime of manslaughter, the murder charge being nol prossed." One of the bases of the objection apparently was that "the Commonwealth should have taken Mrs. Gerwaski through a direct examination without getting into the matter of her guilty plea; the defense would be then at liberty on cross-examination to use the plea to weaken her credibility by suggesting bias As well as conviction of crime " (emphasis supplied). 373 Mass. at --- ^C, 372 N.E.2d at 249. The court, after noting that the defendant's objection had been untimely, had the following to say: "Had the objection been timely made in the same form, the judge would have been justified in overruling it and permitting the prosecution to question Mrs. Gerwaski as it did. When the prosecution tenders as its witness a person with a criminal record, it sometimes starts by eliciting this history. (The defense sometimes does the same when offering such a witness on its part.) The interrogation should not be regarded as an impeachment of the prosecution's own witness prohibited by G.L. c. 233, § 23 (see (citations omitted)), nor can the defense claim a right to bring out the damaging facts for the first time in a perhaps more dramatic way on cross-examination. This 'is not something which is to be reserved for the pleasure and strategy of the defense.' United States v. Freeman, 302 F.2d 347, 350 (2d Cir. 1962). The jury are entitled to the information for its bearing on the value of the witness's testimony, and the prosecution might indeed on occasion suffer unfairly in the estimation of the jury for attempting to conceal the criminal record if it did not come forward with it" (emphasis supplied). 373 Mass. at --- ^D, 372 N.E.2d at 249.

We read the last quoted passage to say that the defense has a right, equal to and coextensive with that of the prosecution, to elicit on direct examination of its own witnesses the facts concerning any convictions they may have which would be admissible in evidence if offered by the prosecution under the provisions of G.L. c. 233, § 21. There is no sound reason why the rule should be any different when the defense tenders the defendant himself as a witness. If our reading of the Cadwell case is wrong because it goes no further than enunciating a rule to the effect that the question of who will offer a criminal record is one of the order of proof which is to be determined by the trial judge in the exercise of his discretion (see, e. g., Commonwealth v. Saarela,--- Mass. ---, --- - ---, --- - --- ^E, 383 N.E.2d 501 (1978)), then we have to conclude that the defendant was improperly denied access to the exercise of such discretion. The exclusionary ruling which was made in this case ("(t)he thing which prohibits you is the rule that says you can't impeach your own witness") must be construed as a ruling of law to the effect that the judge had no discretion to allow what counsel wanted. Accordingly, if the alternative reading of the Cadwell case which has just been suggested is the correct one, the judge's ruling must still be regarded as erroneous. See, e. g., Commonwealth v. Fontain, 127 Mass. 452, 455 (1879); Long v. George, 296 Mass....