Commonwealth v. Saunders

• Decision Date: 15 September 2000
• Docket Number: P-462
• Citation: 744 N.E.2d 74,50 Mass. App. Ct. 865
• Parties: (Mass.App.Ct. 2001) COMMONWEALTH vs. KEVIN SAUNDERS. 99-
• Court: Appeals Court of Massachusetts

744 N.E.2d 74 (Mass.App.Ct. 2001)

COMMONWEALTH vs. KEVIN SAUNDERS.

99-P-462

Massachusetts Court of Appeals

September 15, 2000

February 14, 2001

County: Plymouth.

Present: Lenk, Dreben, & Gillerman, JJ.

Practice, Criminal, Impeachment by prior conviction, Presumptions and burden of proof. Due Process of Law, Impeachment by prior conviction. Evidence, Prior conviction, Voice identification. Error, Harmless. Identification. Search and Seizure, Exigent circumstances.

Indictments found and returned in the Superior Court Department on March 12, 1996.

Claudia Leis Bolgen for the defendant.

John E. Bradley, Assistant District Attorney, for the Commonwealth.

A pretrial motion to suppress evidence was heard by Patrick F. Brady, J., and the cases were tried before Judith A. Cowin, J.

LENK, J.

The defendant, Kevin Saunders, was tried before a jury on four indictments charging armed robbery, unarmed assault with intent to rob, and assault and battery (two indictments), all on two employees of a donut shop in the early morning hours of January 24, 1996. Saunders was convicted of the lesser included offense of unarmed robbery as well as of the latter two offenses.

On appeal, the defendant claims error in two respects. First, he contends that it was an error of constitutional dimension for the trial judge to have allowed the Commonwealth to impeach the defendant pursuant to G. L. c. 233, § 21, with an otherwise stale but counseled conviction that was revived by a subsequent fresh conviction as to which the Commonwealth failed to show that the defendant had or waived counsel. Second, the defendant claims error in the failure to suppress (a) a suggestive out-of-court identification of the defendant, and (b) evidence seized during a warrantless search of the defendant's apartment. We address each in turn, reciting those facts necessary to orient and address the errors asserted.

Facts. The Commonwealth presented evidence that at about 3:00 A.M. on January 24, 1996, two employees of a donut shop, a female counterperson and a male baker, were at work when an unknown male entered the store asking to use the bathroom. When refused, he came behind the counter, demanded money, and grabbed the female employee around her neck and mouth. She eluded the intruder and called to the baker for help. After trying unsuccessfully to open the cash register, the intruder ordered the baker to the front of the store, told him he had a gun, kept his hand in his pocket, and threatened to shoot the baker if he did not open the cash register. The baker could not do so and the intruder punched him several times in the head with his fist. The intruder finally fled after taking some cash and a driver's license from the baker's pocket.

The police were called. The employees gave similar but not identical descriptions of a black male with distinctive large lips and a round face, about five feet seven to ten inches tall, of rugged build, and wearing a multi-colored plaid shirt or jacket under a dark overcoat with a ski mask partially obscuring his face. This description was broadcast to police on patrol. In addition, there was a black and white store videotape of portions of the robbery while in progress depicting the perpetrator as a black male wearing a plaid shirt or jacket and a ski mask.

At about 3:35 A.M., a police officer in a marked cruiser about a mile from the donut shop saw a male of this description drive past with two females, and gave chase. The cars stopped in a housing complex and the male fled into an apartment. Ultimately, after the defendant was taken into custody several hours later, the baker came to the police station. Initially, he could not identify the defendant; he later did so, first by voice and then after taking a second look. The counterperson selected the defendant's photograph that morning from an array at the police station. At trial, both identified the plaid shirt or jacket seized from the apartment where the defendant had been arrested, and again identified the defendant as the robber.

The defense was misidentification, and the defendant testified that he had been at a party until 5:00 A.M., then left with two women in a borrowed car to get cigarettes. Finding the shops closed, he went to his apartment. While acknowledging that he had seen a police car behind him on the road as he was driving to the apartment, he insisted that he had seen neither blue lights nor any attempt by the police to stop him along the way or after he left the car en route to his apartment. He denied having gone to the donut shop on the night in question, denied assaulting or attempting to rob the shop employees, and denied having a gun or ski mask.

Impeachment. Prior to trial in July, 1997, both defense counsel and the prosecutor sought the judge's ruling on whether, if he were to testify, the defendant's eight prior convictions -- three felony convictions from 1988 and four felony convictions and one misdemeanor conviction from 1983 -- could be used to impeach him pursuant to G. L. c. 233, § 21. During the trial, the judge excluded all but the 1983 felony conviction for kidnapping, as to which the Commonwealth showed that the defendant had been represented by counsel. That 1983 conviction, however, was stale under the relevant portion of G. L. c. 233, § 21, Second,¹ and thereby inadmissible for impeachment purposes unless revived by another conviction occurring within ten years of the time of the defendant's trial testimony. The judge turned in this regard to one of the 1988 convictions she had earlier excluded. That 1988 conviction for armed assault in a dwelling house had been excluded because the Commonwealth had not shown that the defendant had been represented by or waived counsel at such proceeding.² Nonetheless, the judge ruled that, while the 1988 conviction could not itself be used to impeach the defendant, it could be used to revive the otherwise inadmissible 1983 conviction for impeachment purposes.

The defendant maintains that his due process rights were violated when the judge permitted the Commonwealth to use an uncounseled conviction to revive an otherwise time-barred but counseled conviction for the purpose of using that revived conviction to impeach his credibility at trial. Reduced to essentials, the defendant's argument is that, because an uncounseled felony conviction cannot be used by the Commonwealth to impeach a defendant's credibility, the use of such an uncounseled conviction to revive another counseled but stale felony conviction that is then used to impeach is equally impermissible insofar as the reviving conviction is the sine qua non of the impeachment that occurred.

The proscription against the use of uncounseled convictions to impeach a defendant has its origins in a handful of decisions from the United States Supreme Court, viz., Gideon v. Wainwright, 372 U.S. 335 (1963), Burgett v. Texas, 389 U.S. 109 (1967), United States v. Tucker, 404 U.S. 443 (1972), and Loper v. Beto, 405 U.S. 473 (1972). Gideon established the rule that, "[i]n the absence of waiver, a felony conviction is invalid if it was obtained in a court that denied the defendant the help of a lawyer." Loper v. Beto, 405 U.S. at 481. Burgett forbade convictions obtained in violation of Gideon to be used against a defendant "either to support guilt or enhance punishment for another offense." Burgett v. Texas, 389 U.S. at 115. In Tucker, the Court considered the aspect of Burgett that prohibits the use of invalid -- because uncounseled -- convictions to enhance the length of a sentence, and concluded that resentencing was necessary. See discussion in Loper, supra at 482. In Loper, the Court considered the other aspect of Burgett, viz., whether prior convictions shown by the defendant to have been obtained in violation of Gideon could be used to impeach his credibility at trial and thereby to support his guilt. The Court concluded they could not because the absence of counsel impairs the reliability of convictions "just as much when used to impeach as when used as direct proof of guilt." Loper v. Beto, 405 U.S. at 483, quoting from Gilday v. Scafati, 428 F.2d 1027, 1029 (1st Cir.), cert. denied, 400 U.S. 926 (1970).

It has been clear in Massachusetts at least since Gilday v. Commonwealth, 355 Mass. 799, 799 (1969), that "no record of prior conviction henceforth should be offered to impeach credibility unless the witness thus attacked can be shown to have had or waived counsel in the proceedings certified by the record." In Commonwealth v. Proctor, 403 Mass. 146, 147 (1988), the court noted that "[t]he reason for these rules is that, because convictions obtained in the absence of counsel are unreliable, use of prior convictions against a defendant violates due process principles absent a showing that the defendant was represented by or had waived counsel." It has also long been clear that the burden to make this "showing" rests squarely on the prosecution. Carey v. Zayre of Beverly, Inc., 367 Mass. 125, 128 (1975). Commonwealth v. Cook, 371 Mass. 832, 833 (1977).

It is undisputed here that the Commonwealth did not make such a showing as to the reviving 1988 conviction and that the defendant's 1983 conviction could not be used against him absent the 1988 conviction. Under our case law, absent proof by the Commonwealth that the 1988 conviction was counseled, that conviction must be deemed uncounseled and hence unreliable for use against the defendant. The issue then becomes whether the unreliable 1988 reviving conviction was used "against the defendant," when it was the revived 1983 conviction that was put before the jury to impeach him. We analyze this in light of the role accorded reviving convictions in our statutory scheme.

The statute permitting impeachment by prior convictions, G. L. c. 233, § 21, allows the use of prior convictions to attack a witness's credibility only when specified time criteria are satisfied. As relevant...