Com. v. Reid

• Decision Date: 03 August 1987
• Citation: 400 Mass. 534,511 N.E.2d 331
• Parties: COMMONWEALTH v. David REID.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 331

511 N.E.2d 331

400 Mass. 534

COMMONWEALTH v. David REID.

Supreme Judicial Court of Massachusetts,

Berkshire.

Argued April 8, 1987.

Decided Aug. 3, 1987.

Francis X. Spina, Pittsfield, for defendant.

Lee Diane Flournoy, Asst. Dist. Atty., for the Com.

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

LYNCH, Justice.

Following a jury trial in the Superior Court in Berkshire County, the defendant, David Reid, was found guilty of rape of a child without force, and assault and battery. In the Appeals Court the defendant claimed error in the following respects: the trial judge's not charging the jury regarding indecent assault and battery as a lesser included offense of the rape of a child without force; the exclusion of evidence that the victim herself may have caused the condition which suggested penetration; and the judge's failure to conduct a complete voir dire on the issue of the victim's competency. He also claimed ineffective assistance of counsel in that his trial counsel failed to move for a required finding of not guilty on the basis of lack of evidence that the defendant penetrated the victim; failed to request an instruction regarding the lesser included offense of indecent assault and battery; failed to refer in his closing to the lack of evidence of penetration; and failed to file a motion in limine seeking to exclude certain of the defendant's prior convictions. Finally, ineffective assistance of counsel is claimed in that trial counsel failed to comply with the Rape-Shield Law, G.L. c. 233, § 21B (1984 ed.), in attempting to introduce evidence from a social worker, regarding her observations that the victim engaged in excessive touching of herself in the genital area.

The Appeals Court ordered a new trial in order that the trial judge be given an opportunity to exercise his discretion with regard to the defendant's prior convictions. Commonwealth v. Reid, 22 Mass.App.Ct. 730, 735, 497 N.E.2d 1107 (1986). The court decided that there was a likelihood that, had the trial judge been asked to exercise his discretion, he would have excluded those prior convictions of the defendant that were for assaultive offenses. Id. at 733, 497 N.E.2d 1107. Since the judge was not asked to exercise that discretion, the court was concerned that the use of the defendant's entire record may have led to a miscarriage of justice where the evidence of guilt was not overwhelming. Id. at 734, 497 N.E.2d 1107. The court implicitly based its decision on ineffective assistance of counsel in determining that better work by counsel might have resulted in something material for the defense. Id. at 735, 497 N.E.2d 1107. See Commonwealth v. Satterfield, 373 Mass. 109, 115, 364 N.E.2d 1260 (1977). We affirm the judgments of the Superior Court.

1. Ineffective assistance of counsel. Even where a defendant raises ineffective assistance of counsel for the first time on appeal, the court will review that issue in order to "prevent a miscarriage of justice." Commonwealth v. Mercado, 383 Mass. 520, 526, 420 N.E.2d 330 (1981). In the present case, ineffective assistance of counsel was raised previously in a motion for new trial, albeit on different grounds. ¹ We need not decide whether the present case should be reviewed under a different standard than where the claim has been properly raised below because we conclude that the defendant has failed to demonstrate ineffective assistance of counsel.

The defendant claimed, for the first time on appeal, that he was denied effective assistance of counsel under the State and Federal Constitutions because trial counsel failed to move in limine or at trial to exclude certain of his prior convictions or to request limiting instructions. In his motion for new trial and on appeal he claims that trial counsel should have diminished the adverse effect of the introduction of the convictions by eliciting them on direct examination of the defendant. While we agree that it would have been better practice for trial counsel to have at least objected to the introduction of the defendant's prior convictions, we do not believe that prejudice to the defendant resulted.

Ineffective assistance of counsel is governed in this Commonwealth by the standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). We have stated that, if the State standard is met, the Federal standard is necessarily met as well. Commonwealth v. Fuller, 394 Mass. 251, 256 n. 3, 475 N.E.2d 381 (1985). See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ineffective assistance of counsel does not exist unless the record reveals "serious incompetency, inefficiency, or inattention of counsel--behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer" and that such serious incompetency, inefficiency, or inattention "has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, supra. See Commonwealth v. Sylvester, 400 Mass. 334, 341, 509 N.E.2d 275 (1987). Normally, the defendant must show that "better work might have accomplished something material for the defense." Commonwealth v. Satterfield, supra 373 Mass. at 115, 364 N.E.2d 1260.

a. Admission of prior convictions. There is no apparent reason for counsel's failure at least to object to the introduction of the defendant's numerous prior convictions. That failure constitutes behavior which fell measurably below that of an ordinary fallible lawyer. In Commonwealth v. Maguire, 392 Mass. 466, 470, 467 N.E.2d 112 (1984), we held that a trial judge's decision regarding admission of prior convictions under the statute ² involves an exercise of discretion which is reviewable by an appellate court. The danger of unfair prejudice is weighed against the probative value of the evidence of prior convictions with regard to credibility. Id. See Commonwealth v. Fano, 400 Mass. 296, 508 N.E.2d 859 (1987). As early as 1977, we stated 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," where the prior conviction is of a similar crime to that charged and has little relation to untruthfulness. Commonwealth v. Chase, 372 Mass. 736, 750, 363 N.E.2d 1105 (1977). In Commonwealth v. Knight, 392 Mass. 192, 194, 465 N.E.2d 771 (1984), we clarified that a judge has discretion with regard to admitting or excluding prior convictions.

The trial in the present case was held in September, 1985. The law was well established at that time that a judge must exercise discretion with regard to impeachment of a criminal defendant with prior convictions, and that the decision is reviewable on appeal. Although we can only speculate as to what ruling the trial judge would have made, the ordinary fallible lawyer would usually be expected to at least object to the introduction of the defendant's fourteen prior convictions. In the present case, however, we do not believe that counsel's conduct resulted in prejudice to the defendant.

Although the court has stated that where the prior conviction is for a crime substantially similar or similar in nature to the crime for which the defendant is on trial, the danger of unfair prejudice is most likely to arise, Commonwealth v. Elliot, 393 Mass. 824, 833, 473 N.E.2d 1121 (1985), we have never held that admission of a prior conviction substantially similar to that for which the defendant is on trial is per se error. Commonwealth v. Fano, supra 400 Mass. at 303, 508 N.E.2d 859. The defendant was on trial for rape of a child without force and assault and battery (on that child). He was impeached by evidence of fourteen prior convictions, five of which involved assaults or threats. ³

Some of the prior convictions were dissimilar to either charge, did not involve assaultive behavior, and had a direct bearing on the honesty of the defendant, i.e., possession of stolen property, receiving stolen property, and uttering a forged check. Thus, even under the narrowest standard for admission of prior convictions, there is no apparent basis for excluding all the evidence. None of the prior crimes is notably similar to rape of a child without force. In the rape case, therefore, similarity of the prior conviction would not have been a sound basis for the judge to exercise his discretion in favor of excluding all of the evidence. Furthermore, even though some are similar to the assault and battery charge, we do not believe that under the circumstances of this case it would have been an abuse of discretion not to exclude them. Assault and battery of a police officer and assault and battery with a deadly weapon are not necessarily substantially similar to punching a child.

In Commonwealth v. Elliot, supra 393 Mass. at 833-834, 473 N.E.2d 1121, this court suggested that unfair prejudice might arise where a defendant charged with rape was impeached with a prior conviction for rape. The present case does not present the similarity of offenses that existed in Elliot. Neither are we presented with a case where a judge believed he had no discretion or admitted the prior convictions because of their similarity to the crimes charged. See Commonwealth v. Ruiz, 400 Mass. 214, 508 N.E.2d 607 (1987); Commonwealth v. Guilfoyle, 396 Mass. 1003, 1004, 485 N.E.2d 679 (1985). We have never suggested that an abuse of discretion would arise from the admission of dissimilar prior convictions merely because they are numerous. Even if we assume that the less serious crimes and the motor vehicle violations would have been excluded on a proper motion, it is mere speculation to assume that the defendant would have been aided in any material way. Under any hypothesis the defendant's credibility would have been impeached by evidence of his conviction of serious criminal offenses. De...