Com. v. Roucoulet

• Decision Date: 31 July 1986
• Citation: 496 N.E.2d 166,22 Mass.App.Ct. 603
• Parties: COMMONWEALTH v. Arthur F. ROUCOULET, Jr.
• Court: Appeals Court of Massachusetts

Page 166

496 N.E.2d 166

22 Mass.App.Ct. 603

COMMONWEALTH v. Arthur F. ROUCOULET, Jr.

Appeals Court of Massachusetts,

Berkshire.

Argued July 15, 1986.

Decided July 31, 1986.

Thomas L. Campoli (David R. Cianflone, Pittsfield, with him), for defendant.

Michael J. McCarthy, Asst. Dist. Atty., for the Com.

Before GREANEY, C.J., and SMITH and WARNER, JJ.

GREANEY, Chief Justice.

Following trial by a six-person jury in a District Court, the defendant was convicted of possession of marihuana with intent to distribute, G. L. c. 94C, § 32C(a ). He was sentenced to a term of two years in a house of correction, six months of the sentence to be served and the balance suspended on probation. The trial judge denied a stay of sentence pending appeal. A stay of sentence was subsequently granted by a single justice of this court. We reverse the conviction, concluding that the trial judge erred in allowing the defendant to be impeached by his prior convictions of more serious drug crimes.

The prosecution's case was based upon the testimony of an undercover police officer assigned to the special investigation unit of the Pittsfield police department. This officer testified that on April 22, 1985, at about 11:30 P.M., she met the defendant in a bar in Pittsfield. After some conversation, she asked the defendant "if he had a joint that I could buy." The defendant left for about fifteen minutes. According to the officer, when the defendant returned, he "gave me a joint" by "slid[ing] it to me, like on the side, so no one else could see it." The officer further testified that the defendant refused an offer of payment for the cigarette. No other controlled substance was exchanged. The defendant was subsequently charged with possession of marihuana with intent to distribute.

The defendant's case raised issues of misidentification and alibi. Two persons who had been identified by the undercover officer as having been in the bar at the time of the transfer of the cigarette testified that they had not been present. The defendant's wife testified that he was home with her on April 22, and that they had retired for the night at about 11:00 P.M. The defendant testified that he had never seen the undercover officer before and that on the night of April 22 he had been home with his wife and two year old daughter.

On cross-examination, the defendant was impeached by the prosecutor with prior criminal convictions for violations of the controlled substance laws. The convictions resulted from the defendant's pleas of guilty in Superior Court in Berkshire County on June 5, 1981, on six indictments which had been returned in August, 1980, more than five years before the trial of the present case. As for the defendant's criminal background, the jurors were informed by the prosecutor's cross-examination, and by introduction of the indictments in evidence, of the following:

The indictments in evidence also advised the jury of other details: that, on July 1, 1982, the sentences had been revised by the Superior Court judge who had accepted the defendant's guilty pleas, to place on file three of the cases (nos. 4, 5 and 6, above, involving possession of methaqualone, phenmetrazine and amphetamines), but to leave the concurrent five-to-seven year sentences on the other three convictions in effect; that the defendant had posted $1,000 bail to gain his release prior to trial; and that there was no credit against the sentences for time in confinement pending disposition. ⁴

The question whether the convictions should be allowed for impeachment was taken up by the judge at a hearing prior to trial, held in response to a motion in limine filed by the defendant's counsel, as suggested in Commonwealth v. Diaz, 383 Mass. 73, 81-82, 417 N.E.2d 950 (1981). See also Commonwealth v. Gonzalez, 22 Mass.App.Ct. 274, 275, 493 N.E.2d 516 (1986). The motion was strenuously pressed by defense counsel in view of the alibi and misidentification issues and the need for the defendant to take the stand to get the jury to consider the issues seriously. The trial judge, while recognizing that he had discretion to exclude the convictions ⁵, did not feel so inclined. To defense counsel's argument that the impeaching crimes were so similar to the offense being tried that the effect would be "devastating," and to defense counsel's observation that the age of the convictions said little about the defendant's credibility, the judge made the remarks set out below. ⁶ To defense counsel's further question, "How does the fact that he pled guilty, your Honor, back in 1980 [defense counsel had the date wrong; it was 1981], to all these offenses suggest that he should not be believed today?," the judge gave the answer noted below. ⁷ Further colloquy, generally along the same line as set forth in notes 6 and 7, culminated in the judge's ruling that the criminal convictions could come in if the defendant elected to testify. When the convictions did come in they were objected to by the defendant's counsel. See Commonwealth v. Gabbidon, 398 Mass. 1, 7, 494 N.E.2d 1317 (1986). We note finally that the prosecutor did not refer to the convictions in his final argument, no limiting instruction was requested or given when the impeachment occurred, and the judge's closing charge contained the standard instruction that the impeachment was to be used by the jury only to evaluate the defendant's credibility and for no other purpose.

1. The present state of the law of impeachment by prior convictions has been reviewed in recent decisions and need not be reiterated. See Commonwealth v. Knight, 392 Mass. 192, 194, 465 N.E.2d 771 (1984); Commonwealth v. Elliot, 393 Mass. 824, 833-834, 473 N.E.2d 1121 (1985); Commonwealth v. Gonzalez, supra 22 Mass.App.Ct. at 276-277, 493 N.E.2d 516; Commonwealth v. Ruiz, 22 Mass.App.Ct. 297, 301, 493 N.E.2d 511 (1986). A trial judge's exercise of discretion in admitting a defendant's prior criminal convictions may be reviewed on appeal and may be reversed for abuse of that discretion. Commonwealth v. Maguire, 392 Mass. 466, 470, 467 N.E.2d 112 (1984).

In this case there was such abuse. The comments by the judge disclose two bases for his ruling. The first basis--not expressed directly but implicit, we think, in the judge's reference to the need for the jury to know about repeat offenses of like kind, such as drunken driving convictions (to use the judge's example)--is the notion that impeachment is more probative than prejudicial when there is similarity between the crime of which the defendant had been previously convicted and the crime on which he is standing trial. Such "similarity is precisely the 'unfair prejudice' to which the language of Maguire is directed. It is all too easy for a jury to surmise that if a defendant earlier committed a crime, he probably committed the crime for which he is being tried, particularly if the crimes are similar". Commonwealth v. Guilfoyle, 396 Mass. 1003, 1004, 485 N.E.2d 679 (1985). Admitting the convictions for this reason constituted error. Ibid.

The judge's second basis for allowing the impeachment--expressed directly several times--is the notion that the jury could consider the defendant's testimony unbelievable because, as a repeat drug offender, he would face a stiffer penalty. The rationale for impeachment by prior conviction lies in the fact that the defendant's past conduct may have a tendency to demonstrate present untruthfulness; that is, a defendant's earlier disregard for the law may suggest to the factfinder similar disregard for the courtroom oath. This point was made some time ago by Justice Holmes in Gertz v. Fitchburg R.R., 137 Mass. 77, 78 (1884), a civil case, as follows: "[W]hen it is proved that a witness has been convicted of a crime, the only ground for disbelieving him which such proof affords is the general readiness to do evil which the conviction may be supposed to show. It is from that general disposition alone that the jury is asked to infer a readiness to lie in the particular case, and thence that he has lied in fact. The evidence has no tendency to prove that [the witness] was mistaken, but only that he has perjured himself, and it reaches that conclusion solely through the general proposition that he is of bad character and unworthy of credit" (emphasis supplied). See Commonwealth v. Knight, 392 Mass. at 195-196 n. 2, 465 N.E.2d 771. The point remains valid today, see Advisory Committee Note to First Draft of Proposed Fed.R.Evid. 609(a), 46 F.R.D. 161, 297 (1969) ("A demonstrated instance of willingness to engage in conduct in disregard of accepted patterns is translatable into willingness to give false testimony."), and applies to criminal cases. See Commonwealth v. Elliot, 393 Mass. at 835, 473 N.E.2d 1121 (Lynch, J., concurring).

We think it was a distortion of this relatively circumscribed purpose of impeachment testimony for the judge to reason as he did. In essence, he reasoned that the jury could infer present untruthfulness from the defendant's past criminal conduct through speculation that such conduct, which was more than five years old, might lead to some harsh but unspecified future punishment. Such an inference would necessarily assume more than general awareness by the jury of an unknown factor, namely, the nature of the defendant's punishment should conviction result on a charge that he possessed and gave away a single marihuana cigarette, and it would also include the additional assumption that the judge would imprison the defendant for such an offense. ⁸ Furthermore, admitting the convictions in this case on the rationale that the defendant was a repeat drug offender who could suffer severe punishment would necessarily inject the consequences of sentencing into the jurors' deliberations. Such consideration is prohibited "because the jury's function is to reach a verdict based solely on the evidence presented to them considered in light of the judge's charge to...