Commonwealth v. Elwell

• Docket Number: 22-P-792
• Decision Date: 20 December 2023
• Parties: COMMONWEALTH v. THOMAS ELWELL
• Court: Appeals Court of Massachusetts

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COMMONWEALTH
v.
THOMAS ELWELL

No. 22-P-792

Appeals Court of Massachusetts

December 20, 2023

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant of armed robbery. On appeal the defendant challenges the trial judge's denial of his motion to impeach the victim with a prior conviction and the judge's giving of a consciousness of guilt instruction. We affirm.

Background.

During the day on October 6, 2018, the victim was walking on Highland Avenue from Salem toward Lynn when he heard someone in a car yelling his name and telling him to "come over." The car, which was also traveling on Highland Avenue, pulled in next to a 7-Eleven convenience store located about one-half mile into Lynn. There were two men in the car. The victim recognized the driver as the defendant from their time in jail together. The victim did not know the passenger.

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As the victim walked over to the car, the defendant and the other man jumped out and approached him saying, "You know what's going on. Drop your stuff." The defendant held a knife to the victim and told him to "[h]and over everything" he had. The other man lifted up his shirt, displaying what appeared to be the handle of a gun or a knife. The victim gave the men his cell phone and his backpack, which contained his laptop computer and some clothes. The men then got back in the car and drove away.

About a week later, detectives interviewed the defendant. At first, the defendant denied being in Lynn recently and denied knowing the victim. But when confronted with the victim's version of events, the defendant admitted that he knew "of" the victim because they were in jail together years ago. When a detective then asked "what really happened," the defendant claimed that he and a man named Spades were driving on Highland Avenue into Lynn when Spades said, "We're going to rob somebody." The defendant further claimed that he asked to be let out of the car, but Spades held a knife to him, pulled into the 7-Eleven parking lot, and forced him to participate in the robbery.

Discussion.

1. Motion to impeach.

On the first day of testimony, the defendant moved to impeach the victim with his 2014 conviction of larceny from a building, arguing that the

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prior conviction could be used for impeachment purposes because it bore on "the victim's capacity for honesty." The judge disagreed and denied the motion. Reasoning that the crime of larceny from a building is not one "that correlates to [a witness's] ability to tell the truth," the judge concluded that the probative value of the prior conviction was de minimis, while the risk of unfair prejudice was high.

On appeal the defendant does not appear to challenge the judge's conclusion that larceny from a building is not a crime implicating truthfulness. Instead, quoting Commonwealth v. Smith, 450 Mass. 395, 407 (2008), cert. denied 555 U.S. 893 (2008), he points out (for the first time on appeal) that "convictions relevant to...