Com. v. Gonzalez

• Citation: 22 Mass.App.Ct. 274,493 N.E.2d 516
• Parties: COMMONWEALTH v. Francisco GONZALEZ.
• Decision Date: 30 May 1986
• Court: Appeals Court of Massachusetts

Page 516

493 N.E.2d 516

22 Mass.App.Ct. 274

COMMONWEALTH v. Francisco GONZALEZ.

Appeals Court of Massachusetts,

Bristol.

Argued Feb. 18, 1986.

Decided May 30, 1986.

Andrew Silverman, Committee for Public Counsel Services, Boston, for defendant.

Bernadette L. Sabra, Asst. Dist. Atty. (Dana A. Curhan, Asst. Dist. Atty., with her), for Com.

Before DREBEN, CUTTER and WARNER, JJ.

WARNER, Justice.

After separate trials, see G.L. c. 278, § 11A, the defendant was found guilty by a Superior Court jury of possession of heroin with intent to distribute (G.L. c. 94C, § 32[a ] ) and of having been convicted of the same offense on one or more prior occasions (G.L. c. 94C, § 32[b ], as appearing in St. 1982, c. 650, § 6). On appeal, the defendant challenges the sufficiency of the indictment on the latter charge and, as to the former charge, certain of the judge's rulings, and portions of the prosecutor's closing argument and the judge's instructions to the jury. Finding no error, we affirm the judgments.

1. The denial of the defendant's motion to exclude evidence of his prior criminal convictions. The defendant filed a motion in limine seeking to exclude the admission for impeachment purposes of the defendant's fourteen prior criminal convictions. In so doing, the defendant followed the suggestion that a ruling on such questions should be sought at an early time. See Commonwealth v. Diaz, 383 Mass. 73, 81-82, 417 N.E.2d 950 (1981), ¹ and cases cited. The defendant's particular concern was with prior convictions for the same or similar offenses as the primary crime which was currently being charged; the defendant had been convicted once of illegal possession of narcotic drugs, twice of illegal possession of heroin, once of possession of heroin with intent to sell, once of possession of a Class A controlled substance, second offense (heroin is a Class A controlled substance, G.L. c. 94C, § 31), and thrice of distribution of a Class A controlled substance, all second offenses. ² The defendant argues that the trial judge abused his discretion in denying the motion because the danger of prejudice from the admission of the defendant's prior convictions for the same or similar crimes, even though limited to impeachment purposes, far outweighed their probative value. ³ See Commonwealth v. Maguire, 392 Mass. 466, 470, 467 N.E.2d 112 (1984). The Commonwealth, relying on Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), contends that as the defendant did not testify and the prior convictions were, therefore, not admitted, the question of the balancing of prejudice and probative worth is not open on appeal. The defendant counters that he did not testify because of the adverse ruling and that if he had testified, he would have denied all involvement in the incident. See Commonwealth v. DiMarzo, 364 Mass. 669, 680, 308 N.E.2d 538 (1974) (Hennessey, J., concurring).

First, we state some basic principles. We are not dealing with an issue of Federal or State constitutional dimension. See Commonwealth v. Diaz, supra, 383 Mass. at 75-79, 417 N.E.2d 950, and cases cited; Commonwealth v. Maguire, supra, 392 Mass. at 470 n. 8, 467 N.E.2d 112. A judge's exercise of discretion in admitting evidence of a defendant's prior conviction for impeachment purposes when a defendant testifies is reviewable on appeal. Commonwealth v. Maguire, supra at 470, 467 N.E.2d 112. "The question on appeal will normally be whether there was an abuse of discretion in admitting evidence of a prior conviction because the danger of unfair prejudice outweighed the probative value of the evidence of a prior conviction for the purposes of impeachment" (footnote omitted). Ibid. This standard of review is essentially the same as that explicitly provided in Fed.R.Evid. 609(a)(1). Commonwealth v. Maguire, supra at 468 n. 2, 467 N.E.2d 112. ⁴

In Luce v. United States, supra, the Supreme Court granted certiorari to resolve a conflict among Federal Courts of Appeal on the question presented here. 105 S.Ct. at 462, 463. A unanimous court (Stevens, J., taking no part, and Brennan and Marshall, JJ., concurring in the reasoning and result) held that in order to present for review a claim of abuse of discretion in ruling to admit, after application of the balancing test in Fed.R.Evid. 609(a)(1), evidence of a prior conviction for impeachment purposes, a defendant must testify at trial. We set forth in the margin the relevant portions of the opinion of the Court. ⁵

Our appellate courts have not yet considered the question. See Commonwealth v. DiMarzo, 364 Mass. at 680, 308 N.E.2d 538 (Hennessey, J., concurring); Commonwealth v. Knight, 392 Mass. 192, 465 N.E.2d 771 (1984) (defendant did not testify but "narrow question" before court [id. at 195, 465 N.E.2d 771] was whether judge knew he had discretion and exercised it; case decided before Commonwealth v. Maguire, supra ); Commonwealth v. Edgerly, 13 Mass.App.Ct. 562, 571-572, 435 N.E.2d 641 (1982) (defendant did not testify but error as matter of law for judge to refuse to exercise discretion); Commonwealth v. McFarland, 15 Mass.App.Ct. 948, 445 N.E.2d 1085 (1983) (same). In Commonwealth v. Maguire, 392 Mass. at 467, 467 N.E.2d 112, the defendant testified and was impeached by a prior conviction. In announcing the standard of review to which we have referred, the court held: "We will consider seasonably raised challenges to the admission of evidence of prior convictions of a defendant who testified at trial." Id. at 470, 467 N.E.2d 112. We are not, of course, bound to follow the holding of the Supreme Court in Luce. ⁶

On the record before us, we need not reach the question whether the judge's exercise of discretion in ruling on the in limine motion to exclude evidence of prior convictions for impeachment of the defendant is reviewable. The record of the proceedings on the motion is before us on the contents of the defendant's motion to expand the record on appeal, which was allowed by the judge. ⁷ From that motion we learn only the following. The hearing was held before the jury were empanelled. ⁸ The defendant's counsel stated that the defendant wanted to testify but would not do so if the Commonwealth should be permitted to impeach him with evidence of convictions for the same or similar offenses. If the defendant should testify, counsel represented, "his testimony would include a complete denial of participation in the heroin sale at issue in the case." The judge examined copies of the defendant's records of convictions. The prosecutor stated that he intended to introduce evidence of the defendant's prior convictions, but there is no indication that the prosecutor informed the judge of the nature of the other evidence the Commonwealth intended to produce. "Thus the judge was not furnished with a scenario which would have given him some indication of the course the trial might be expected to take, by which he could measure the prejudicial effect of the impeaching evidence as against its relevance to the defendant's credibility" (footnote omitted). Commonwealth v. Cavanaugh, 7 Mass.App.Ct. 33, 35, 385 N.E.2d 1006 (1979). See also Commonwealth v. Diaz, 383 Mass. at 81-82, 417 N.E.2d 950 and cases cited. The statement of counsel that the defendant would deny the allegations of the Commonwealth was, without more, an insufficient offer of proof. See Commonwealth v. Cavanaugh, supra. Cf. Commonwealth v. Chase, 372 Mass. 736, 751 n. 8, 417 N.E.2d 950 (1977).

We hold only that, if the question of abuse of discretion in the denial of an in limine motion to exclude evidence is open on review at all in the case of a defendant who does not testify, see Luce v. United States, 105 S.Ct. at 463-464, it must be presented on a record which allows the reviewing court to evaluate the judge's balancing of unfair prejudice and probative value. See Commonwealth v. Maguire, 392 Mass. at 470, 467 N.E.2d 112. Absent extraordinary circumstances, which we do not find here, such a record must include descriptions of the nature of the evidence the parties intend to present and such other information as bears on the factors mentioned in Commonwealth v. Diaz, supra, 383 Mass. at 81, 417 N.E.2d 950. We may review the exercise of discretion only on the basis of what was before the judge at the time of exercise. ⁹

2. The curtailment of the defendant's cross-examination. The Commonwealth's case was based upon a single street sale of .85 grams of heroin for $50 to undercover police officers operating out of a pickup truck. There was evidence that the defendant, one of a group of males standing in an abandoned lot, approached the truck, and the officers asked him if they could purchase some heroin. The defendant retrieved the heroin, and the sale was consummated. The defendant then advised the officers to deal with him "or you'll get ripped off."

On cross-examination of an undercover police detective (experienced in narcotics investigations) who observed but did not take part in the transaction just described, the defendant's counsel asked him to describe what one would have to do to establish an operation for the sale of narcotics. The prosecutor's objection was sustained. At a bench conference, the defendant's counsel explained that he wanted the detective's testimony to show "that it takes a substantial amount of time, energy, cash and other resources to set up any type of drug-dealing operation." With that evidence, the defendant would contend that, as he was released after serving a seven-year sentence at M.C.I., Walpole, just seven days before the transaction in question, it would have been impossible for the defendant then to have been an "active drug dealer." The judge thought that the proffered evidence was not relevant to the case presented by the Commonwealth.

"Whether evidence is legally relevant is a question which is generally left to the discretion of the trial judge." Commonwealth v. Chasson, 383...