Com. v. Diaz

• Decision Date: 04 March 1981
• Citation: 383 Mass. 73,417 N.E.2d 950
• Parties: COMMONWEALTH v. Pedro DIAZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 950

417 N.E.2d 950

383 Mass. 73

COMMONWEALTH v. Pedro DIAZ.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 4, 1980.

Decided March 4, 1981.

Ellen A. Howard, Brookline, for defendant.

Charles M. Campo, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, WILKINS and ABRAMS, JJ.

KAPLAN, Justice.

This appeal presents questions about the impeachment of a defendant in a criminal case through evidence of his prior convictions, and about double jeopardy in the sense of multiple punishments. Finding no error, we affirm the judgments of conviction.

Upon indictments for unlawful distribution of a controlled substance (G.L. c. 94C, § 32, as before 1980 amendment), and for possession of a controlled substance with intent to distribute it (id.), the drug being heroin in each instance, the defendant was tried by jury and found guilty of both charges.

We recount the evidence. Detective John Ulrich of the Boston police was the sole witness for the Commonwealth. He testified that about 6 P.M., April 2, 1978, he and Detective Al LaFontaine, both in plain clothes, concealed themselves some distance back of a three-story building located near the corner of Washington and School Streets in the Egleston Square area in Boston. About a half hour later the detectives observed the defendant and one Mendez arrive and stand on the corner near a variety store at street level of the building. Shortly a man approached them, spoke to the defendant, produced what appeared to be currency (in denominations that Ulrich could not discern), counted it, and passed it to the defendant. The defendant walked in the direction of the detectives along the School Street side of the building until he came to three trash cans twenty to thirty feet from the detectives' place of concealment opposite the junction of School Street with Egleston Street. ¹ Opening the middle trash can, the defendant took out two cereal boxes, then a piece of brown paper to which were taped several small bags. The defendant detached one of the bags, walked back, and handed the bag to the man who appeared to smell it and then put it in his pocket. The man crossed to the other side of School Street and began walking down that street toward the next crossing at Egleston Street. At the same time the defendant was continuing his walk toward the store front. Ulrich crossed School Street, confronted the man, and identified himself as a police officer. The man dropped the bag and ran down Egleston Street. Ulrich picked up the bag and went in pursuit, but gave up when he lost sight of his quarry.

Ulrich rejoined LaFontaine and they resumed surveillance. The defendant was back with Mendez at the store front. As the defendant and Mendez noticed the detectives emerging and walking toward them, they ran into the store. The detectives followed and arrested them.

The detectives then led the defendant and Mendez to the middle trash can. Ulrich opened it and removed the two cereal boxes. Beneath was a plastic bag with what appeared to be marihuana, ² and seven small plastic bags containing a brown powder; these were like the bag retrieved by Ulrich during the chase. The powder in the seven bags tested officially as heroin, as did the powder in the retrieved bag.

At the close of the Commonwealth's case, counsel for the defendant moved to exclude from evidence the defendant's two prior convictions for possession of heroin with intent to distribute. The prosecutor resisted the motion, stating that he would "more than likely" introduce the convictions to impeach the defendant's credibility if the defendant testified. The judge denied the motion "as a matter of discretion." Counsel stated for the record that because of this ruling he would not call the defendant. The defendant introduced no evidence and guilty verdicts followed. The judge sentenced the defendant to two years in the Suffolk County House of Correction on each indictment, the sentences to run consecutively.

1. Impeachment by prior convictions. By the express terms of G.L. c. 233, § 21, described in the margin, ³ the prosecutor was entitled to introduce the defendant's prior convictions if he chose to testify. The defendant contends that the statute is unconstitutional as applied to an accused (not merely a witness) in the present circumstances where the prior convictions were of a crime identical with one of those charged, and that crime did not encompass the uttering of falsehood and thus was not highly demonstrative on the question of credibility. ⁴ In such a case, the defendant says, the likelihood that a jury, despite limiting instructions, will use the convictions as a basis for inferring that the accused committed the crime charged, and not just as bearing on his credibility, may well induce him to forgo the exercise of his right to take the stand; but if he does testify, he may well suffer from the unjust jury inference mentioned. ⁵ The constitutional guarantee claimed to be offended when one in the defendant's predicament refrains from testifying is that expressed in our Declaration of Rights, art. 12, of "every subject ... to produce all proofs, that may be favorable to him; ... and to be fully heard in his defense by himself, or his counsel," see Commonwealth v. Mangan, 293 Mass. 531, 533, 200 N.E. 911 (1936); when one does testify, it is the art. 12 guarantee that "no subject shall be ... deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land," which implies the right to a "fair trial with an impartial jury." Commonwealth v. Brown, 364 Mass. 471, 472, 305 N.E.2d 830 (1973). See Commonwealth v. Soares, --- Mass. ---, ---, ---, ---, ^a 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979); Commonwealth v. Howard, 367 Mass. 569, 572, 327 N.E.2d 736 (1975); Commonwealth v. DiMarzo, 364 Mass. 669, 680, 308 N.E.2d 538 (1974) (Hennessey, J., concurring). It might seem that if the defendant in fact did not testify, he could claim to be aggrieved only on the first basis, the burdening of his right to take the stand. Yet we have in the past not so confined a defendant and have allowed him both branches of the argument. See Commonwealth v. Chase, 372 Mass. 736, 749, 363 N.E.2d 1105 (1977). The two matters are linked; both relate to the "fundamentals of a fair trial" guaranteed by art. 12, see Brown v. Commonwealth, 335 Mass. 476, 482, 140 N.E.2d 461 (1957); Pugliese v. Commonwealth, 335 Mass. 471, 475-476, 140 N.E.2d 476 (1957), and the argument is in essence that the statute, having the effects or probable effects described, is not justified by a sufficient State interest.

The argument finds no support in the due process clause of the Federal Constitution which embraces guaranties analogous to those mentioned under our art. 12. We take this to be the effect of the discussion in Spencer v. Texas, 385 U.S. 554, 560-561, 87 S.Ct. 648, 651, 17 L.Ed.2d 606 (1967), acknowledging that a State could constitutionally conclude that past convictions have probative value in the assessment of credibility. The Court indicated that a trial judge could obviate any unfairly prejudicial tendency of such evidence by instructing the jury to confine this material to its proper function or by exercising discretion to exclude it altogether where it might be "particularly prejudicial." ⁶ Subsequent cases have read Spencer as foreclosing any Fourteenth Amendment attack on impeachment by prior convictions; ⁷ and it is noteworthy that the language of Spencer about discretion to exclude has been taken as merely "descriptive" of the practice in many States, and not as suggesting any due process infirmity when the statute or rule allowing impeachment (and the practice thereunder) gives the trial judge no discretion to exclude the convictions when offered. ⁸

The defendant does not advance any argument on the Federal plane, rather he urges us to read the guarantees of art. 12 more expansively than their Federal due process counterparts. We have recognized the peculiar danger of unfair jury inferences when the conviction introduced is of a crime similar to that being tried, ⁹ and noted also the relative significance of convictions of the different kinds of crimes in the appraisal of a defendant's propensity for speaking the truth. ¹⁰ Nevertheless we have rejected constitutional challenges to G.L. c. 233, § 21, as well by a defendant who chose not to take the stand for fear of impeachment, Commonwealth v. Chase, supra, as by a defendant who took the stand and was impeached. Commonwealth v. Leno, 374 Mass. 716, 717, 374 N.E.2d 572 (1978). ¹¹ The two cited cases each involved a situation like that presented here: the prior conviction was of a crime similar to the one charged and did not bear directly on credibility, as perjury or fraud might do. ¹² Our consistent position, then, most recently stated in Leno, has been that the statute in its application with the restrictions provided by the statute on the admission of convictions remote in time (see note 3) and with appropriate use by the trial judge of limiting instructions strikes a constitutional balance between the possibility of unfairness to defendants, and the desirability of making useful information available to the trier. ¹³ Other State courts have taken the same general line. ¹⁴

In the Chase case, 372 Mass. at 750, 363 N.E.2d 1105, qualifying our decision in Commonwealth v. West, 357 Mass. 245, 249, 258 N.E.2d 22 (1970), and building upon thoughts expressed in Commonwealth v. DiMarzo, 364 Mass. 669, 680-682, 308 N.E.2d 538 (1974) (Hennessey, J., concurring), and Commonwealth v. Delorey, 369 Mass. 323, 331, 339 N.E.2d 746 (1975) (Hennessey, J concurring), we said that "we would not deny the right of a judge to avoid any question of unfairness by excluding such evidence in a situation where the likely prejudice to the defendant is most intense." However, this...