Com. v. Gordon

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBefore HENNESSEY; NOLAN
Citation389 Mass. 351,450 N.E.2d 572
Decision Date07 June 1983
PartiesCOMMONWEALTH v. Geoffrey D. GORDON.

Page 572

450 N.E.2d 572
389 Mass. 351
COMMONWEALTH

v.
Geoffrey D. GORDON.
Supreme Judicial Court of Massachusetts,
Middlesex.
Argued April 5, 1983.
Decided June 7, 1983.

Page 573

Evan T. Lawson, Boston (James F. O'Brien, Boston, with him), for defendant.

Claudia R. Sullivan, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

[389 Mass. 352] NOLAN, Justice.

The defendant was convicted by a jury of six in a District Court after an earlier bench trial by a District Court judge. Following the Appeals Court's affirmance of the defendant's convictions of possession of a controlled substance (cocaine) and of operating a motor vehicle negligently so that the lives and safety of the public might be endangered, Commonwealth v. Gordon, 15 Mass.App. 901, 443 N.E.2d 119 (1982), we allowed his application for further appellate review. The defendant filed a statement of the evidence with the trial court. After "settlement and approval" (with amendments by the Commonwealth), it became part of the record in the Appeals Court. Mass.R.A.P. 8(c), as amended, 378 Mass. 932 (1979). We accept the Appeals Court's summary of this evidence which is reproduced in the margin. 1

Page 574

On this appeal, the defendant makes four claims of error: (1) the trial judge's refusal to allow him to play an audio recording of the testimony given at the bench trial by one of the arresting officers for the purpose of impeaching that officer's testimony at the jury trial; (2) the denial of his motion for severance; (3) the denial of his motion for a required [389 Mass. 353] finding of not guilty on the driving to endanger complaint; (4) the admission in evidence of the vial of cocaine, its contents, and an analysis of the contents. There was no error and we affirm the convictions.

1. The use of audio recordings for impeachment. At the jury trial, the defendant asked Officer Robert Eldredge, one of the arresting officers, a number of questions concerning his testimony at the bench trial in an effort to impeach the officer's credibility by "demonstrating discrepancies between his prior testimony and his statements to the jury, and by showing a richness of detail in his later testimony which was lacking in his former testimony and thus suggestive of recent contrivance," 2 as the defendant argues in his brief. Officer Eldredge testified that he did not recall his earlier testimony. The defendant then attempted to introduce in evidence, for impeachment, an audio recording of Officer Eldredge's previous testimony. The judge refused to allow the recording to be played.

As the Appeals Court noted, the statement of the evidence discloses neither the context nor the grounds of the judge's decision. More important, the record does not disclose whether the defendant made an offer of proof concerning the contents and relevancy of the audio recorded testimony. Without an offer of proof it is not possible in this case to determine whether there was error in excluding the evidence. See Commonwealth v. Kleciak, 350 Mass. 679, 693, 216 N.E.2d 417 (1966). It is the defendant's burden to demonstrate the [389 Mass. 354] error of which he complains and he has failed to do so. 3 See Commonwealth v. Sansone, 252 Mass. 71, 75, 147 N.E. 574 (1925).

We take this opportunity to express our views concerning the use of audio recordings for purpose of impeachment since our view differs from that expressed by the Appeals Court. The Appeals Court stated that "[a]lthough for many purposes (see, e.g. Commonwealth v. Vaden, 373 Mass. 397, 400-401, 367 N.E.2d 621 [1977] ) a tape recording may be admitted in evidence, a defendant, desiring to use for impeachment

Page 575

purposes a tape recorded in a District Court, may reasonably be required to have transcribed the relevant portion of the tape-recorded testimony. In that way, usual methods of impeachment may be followed without having the jury hear the whole tape." 15 Mass.App. at 902, 443 N.E.2d 119.

We note that a committee appointed in 1972 by the late Chief Justice of the District Courts, Franklin N. Flaschner, to investigate ways of preserving testimony in District Court proceedings strongly recommended the use of audio recording over any other method because of its accuracy, ease of operation, and relative inexpensiveness. Report on the Preservation of Testimony in Proceedings in the District Courts at 31, 87-115 (November 30, 1973) (report). In his report, Chief Justice Flaschner wrote of the advantages of audio recording over stenography. "While an audio recording may preserve many of the pauses, hesitancies, irrelevancies and poor grammar of some persons, these are things of which trials are made. It is the words uttered that comprise the record, not another's version of them. Audio recordings will also preserve inflections and aural demeanor which typewritten transcripts will not. They are not instantaneously editable as are a reporter's notes, and are a more accurate record of courtroom events. On playback they carry with them the flavor as well as the letter of what occurred and are superior to the 'cold record' which otherwise results. To the extent that this ultimate accuracy produces [389 Mass. 355] a record that is perfectly reflective of what happened in court, it should be favored." Id. at 49-50.

Chief Justice Flaschner contemplated that audio recordings be used routinely in place of typed transcripts. "For case preparation, impeachment and other reasons, and even the preparation of a draft report to the Appellate Division, a tape recording will do just as well [as a typed transcript], particularly if the tape is quickly available to counsel and is inexpensive. The system must, of course, be capable of producing a reasonably accurate typed transcript of proceedings if one is necessary, but that should be the exception. In the routine case a copy of a tape recording of...

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14 practice notes
  • Com. v. Cass
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 16, 1984
    ...443 N.E.2d 119 (1982) (finding evidence sufficient to warrant a verdict of negligent operation so as to endanger the public), aff'd, 389 Mass. 351, 450 N.E.2d 572 (1983). We think it is clear from long usage that the process of judicial Page 1327 definition of statutory terms is within the ......
  • Com. v. Fogarty, No. 87-1093
    • United States
    • Appeals Court of Massachusetts
    • June 29, 1988
    ...however, is not enough to meet that burden. See Commonwealth v. Gallison, 383 Mass. at 672, 421 N.E.2d 757; Commonwealth v. Gordon, 389 Mass. 351, 357-358, 450 N.E.2d 572 [25 Mass.App.Ct. 703] We think the defendant has failed to sustain his burden of showing that the denial of the motion t......
  • Com. v. Chase, No. 87-764
    • United States
    • Appeals Court of Massachusetts
    • December 29, 1988
    ...v. Baker, 348 Mass. at 63-64, 201 N.E.2d 829; Commonwealth v. Kleciak, 350 Mass. 679, 693, 216 N.E.2d 417 (1966); Commonwealth v. Gordon, 389 Mass. 351, 353-354, 450 N.E.2d 572 (1983); Holmgren v. LaLiberte, 4 Mass.App.Ct. 820, 821, 349 N.E.2d 379 (1976); Liacos, Massachusetts[26 Mass.App.C......
  • Com. v. Miller
    • United States
    • Appeals Court of Massachusetts
    • January 31, 1984
    ...failure to sever. Commonwealth v. Gallison, 384 Mass. 184, ---, Mass.Adv.Sh. (1981) 1260, 1273, 425 N.E.2d 276. Commonwealth v. Gordon, 389 Mass. 351, 358, 450 N.E.2d 572 (1983). There is nothing in the record to support the defendant's claim that he was prejudiced by the joinder of the def......
  • Request a trial to view additional results
14 cases
  • Com. v. Cass
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 16, 1984
    ...443 N.E.2d 119 (1982) (finding evidence sufficient to warrant a verdict of negligent operation so as to endanger the public), aff'd, 389 Mass. 351, 450 N.E.2d 572 (1983). We think it is clear from long usage that the process of judicial Page 1327 definition of statutory terms is within the ......
  • Com. v. Fogarty, No. 87-1093
    • United States
    • Appeals Court of Massachusetts
    • June 29, 1988
    ...however, is not enough to meet that burden. See Commonwealth v. Gallison, 383 Mass. at 672, 421 N.E.2d 757; Commonwealth v. Gordon, 389 Mass. 351, 357-358, 450 N.E.2d 572 [25 Mass.App.Ct. 703] We think the defendant has failed to sustain his burden of showing that the denial of the motion t......
  • Com. v. Chase, No. 87-764
    • United States
    • Appeals Court of Massachusetts
    • December 29, 1988
    ...v. Baker, 348 Mass. at 63-64, 201 N.E.2d 829; Commonwealth v. Kleciak, 350 Mass. 679, 693, 216 N.E.2d 417 (1966); Commonwealth v. Gordon, 389 Mass. 351, 353-354, 450 N.E.2d 572 (1983); Holmgren v. LaLiberte, 4 Mass.App.Ct. 820, 821, 349 N.E.2d 379 (1976); Liacos, Massachusetts[26 Mass.App.C......
  • Com. v. Miller
    • United States
    • Appeals Court of Massachusetts
    • January 31, 1984
    ...failure to sever. Commonwealth v. Gallison, 384 Mass. 184, ---, Mass.Adv.Sh. (1981) 1260, 1273, 425 N.E.2d 276. Commonwealth v. Gordon, 389 Mass. 351, 358, 450 N.E.2d 572 (1983). There is nothing in the record to support the defendant's claim that he was prejudiced by the joinder of the def......
  • Request a trial to view additional results

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