Commonwealth v. FordCommonwealth v. Ford
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- Before:
- Abrams
Following his convictions on complaints charging breaking and entering in the night time with intent to commit a felony, larceny in a building, and malicious destruction of property over the value of $100, see
The Appeals Court summarized the facts as follows: “Responding in the early morning of February 22, 1984, to an alarm from the Radio Shack at South Hingham Plaza, Detective Joel McGinnis and other officers found that the store had been burglarized: the glass entrance door had been bashed in, a glass display case worth $400 broken, and (according to the store manager, called to the scene) nine items worth $8,000 — two television sets and seven pieces of electronic equipment — carried off. About 7:30 that morning, McGinnis, accompanied by Detective John Kichler of the same police unit, went to the Easton police station and met John Ford, the defendant’s brother. John Ford admitted complicity in the Hingham break. Upon evidence gathered in the course of the day, a warrant was obtained to search the house of one Menassian, in Saugus. A large amount of merchandise was recovered there, including perhaps five of the items taken from the Radio Shack.
“On April 10,1984, Detective Kichler arrested the defendant upon warrant at the Boston Municipal Court, and, with Officer Larry Schofield, took him to the Hingham police station. He was led into the detectives’ room and presently confronted McGinnis and Kichler. Electronic equipment, including material taken from the Radio Shack, was stacked on the floor. Given his rights, the defendant first denied any knowledge of the break, but after McGinnis asked whether he recognized the loot from the Radio Shack, and went on to mention the brother John Ford and the Menassians, the defendant admitted that he, his brother John, Vinnie Ruggerio, and Julio Caban had done the job; they had taken the stuff from the case, and ‘screwed out in the car. ’ They ‘always’ wore gloves (no finger
“Testifying on his own behalf, the defendant denied he had made any confession on April 10: the implication was that the detectives were lying in order to get a conviction in this, for them, ‘big’ case. On cross-examination, however, the defendant conceded that he had lied in claiming that he did not know Ruggerio or Caban. He also conceded that on the night of February 23, 1984, he was in a car with these two and his brother. Further, the defendant was impeached by certified records of his numerous convictions of crime, including convictions for possession of stolen motor vehicles, operating under the. influence of intoxicating liquor, operating to endanger, operating after license revocation, possession of burglarious implements, and receiving stolen property.” (Footnote omitted.) Id. at 576-577.
The certified records of the defendant’s prior convictions included docket entries which showed defaults, warrants issued, arrests on warrant, and violations of probation. The admission of unexpurgated records was error. We agree with the Appeals Court that where certified records of prior conviction are used to impeach,
Further, the judge twice allowed the prosecutor to impeach the defendant with a bench trial conviction and then with a jury-of-six conviction for the same offense. This may have given the jurors the misimpression that the defendant had been convicted of additional offenses, clearly to the defendant’s detriment, and should not have been allowed. 2 See Commonwealth v. Buckley, 17 Mass. App. Ct. 373, 380-381 (1984).
We do not, however, agree with the Appeals Court’s conclusion that the error was nonprejudicial. The only evidence that tied the defendant to the break-in was the defendant’s confession to the police officers. The confession as reported by the officers did not reveal details that only the culprit would know,
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and there was no circumstantial evidence of the defendant’s involvement. The defendant denied making the confession. It may be that the record of prior convictions so undermined the defendant’s credibility that the extraneous entries were superfluous to the Commonwealth’s successful attempt to impeach. Or, it may be that the records of defaults, warrants, arrests, and probation violations, “went beyond the fact of prior conviction to paint the defendant as a chronic criminal and a man at constant war with society,” as the defendant argues. Credi
The defendant also argues that his “right to be secure from double jeopardy” was violated by the judge’s imposition of consecutive sentences for the offenses of breaking and entering in the night time with intent to commit a felony, larceny in a building, and malicious destruction of property over the value of $100. Because the issue may arise on retrial, we address it. We agree with the Appeals Court that “[t]here was no such overlap or congruence among the three crimes of which the defendant was convicted as might call for cancelling any one of them as redundant or duplicative in the sense of Kuklis v. Commonwealth, 361 Mass. 302, 306-307 (1972).” Commonwealth v. Ford, supra at 580. Conviction for each of the offenses required the Commonwealth to prove an additional fact riot required for conviction of the other two offenses. Commonwealth v. Hogan, 379 Mass. 190, 195 (1979). Morey v. Commonwealth, 108 Mass. 433, 434 (1871). Josslyn v. Commonwealth, 6 Met. 236, 240 (1843). See Commonwealth v. Rivera, ante 244 (1986).
The judgments are reversed, the verdicts set aside, and the cases remanded to the District Court jury-of-six session for a new trial.
So ordered.
Notes
The cases were tried in the six-member jury session of the Hingham Division of the District Court.
The judge compounded this error by allowing the defendant to attempt to explain the disposition of the various proceedings. The judge should have allowed a record only of the final disposition on each conviction and each such conviction should have been left unexplained. Lamoureux v. New York, N.H. & H.R.R., supra.
Detective McGinnis testified to the confession as follows: “He says, ‘Yeah, I did the break with my brother, Vinnie Ruggerio and Julio Ca[v]an. ’ And I asked him, ‘Did you wear gloves?,’ and he said, ‘Yeah, we always wear gloves.’ I said, ‘Well, who did the break’ and he said, ‘Julio smashed a window out with a baseball bat, we went in and grabbed all the items and threw them in the trunk and we screwed out in the car. ’ ” The substance of Detective Kichler’s version of the confession was similar. There is no indication in the record that the police officers asked the defendant to sign a written statement of his confession.