Commonwealth v. GonzalezCommonwealth v. Gonzalez
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After separate trials, see
1.
The denial of the defendant’s motion to exclude evidence of his prior criminal convictions.
The defendant filed a motion in limine seeking to exclude the admission for impeachment purposes of the defendant’s fourteen prior criminal convictions. In so doing, the defendant followed the suggestion that a ruling on such questions should be sought at an early time. See
Commonwealth
v.
Diaz,
383 Mass. 73, 81-82 (1981),
1
and cases
First, we state some basic principles. We are not dealing with an issue of Federal or State constitutional dimension. See
In
Luce
v.
United States, supra,
the Supreme Court granted certiorari to resolve a conflict among Federal Courts of Appeal on the question presented here. 469 U.S. at 40. A unanimous court (Stevens, J., taking no part, and Brennan and Marshall, JJ., concurring in the reasoning and result) held that in order to present for review a claim of abuse of discretion in a ruling to admit, after application of the balancing test in
On the record before us, we need not reach the question whether the judge’s exercise of discretion in ruling on the in limine motion to exclude evidence of prior convictions for impeachment of the defendant is reviewable. The record of the proceedings on the motion is before us on the contents of the defendant’s motion to expand the record on appeal, which was allowed by the judge.
7
From that motion we learn only the following. The hearing was held before the jury were em-panelled.
8
The defendant’s counsel stated that the defendant wanted to testify but would not do so if the Commonwealth should be permitted to impeach him with evidence of convictions for the same or similar offenses. If the defendant should testify, counsel represented, “his testimony would include a complete denial of participation in the heroin sale at issue in the case.” The judge examined copies of the defendant’s records of convictions. The prosecutor stated that he intended to introduce evidence of the defendant’s prior convictions, but there is no indication that the prosecutor informed the judge of the nature of the other evidence the Commonwealth intended to produce. “Thus the judge was not furnished with a scenario which would have given him some indication of the course the trial might be expected to take, by which he could measure the prejudicial effect of the impeaching evidence as against its relevance to the defendant’s credibility” (footnote omitted).
Commonwealth
v.
Cavanaugh,
7 Mass. App. Ct. 33, 35 (1979). See also
We hold only that, if the question of abuse of discretion in the denial of an in limine motion to exclude evidence is open on review at all in the case of a defendant who does not testify, see Luce v. United States, 469 U.S. at 41-42, it must be presented on a record which allows the reviewing court to evaluate the judge’s balancing of unfair prejudice and probative value. See Commonwealth v. Maguire, 392 Mass, at 470. Absent extraordinary circumstances, which we do not find here, such a record must include descriptions of the nature of the evidence the parties intend to present and such other information as bears on the factors mentioned in Commonwealth v. Diaz, supra at 81. We may review the exercise of discretion only on the basis of what was before the judge at the time of exercise. 9
2. The curtailment of the defendant’s cross-examination. The Commonwealth’s case was based upon a single street sale of .85 grams of heroin for $50 to undercover police officers operating out of a pickup truck. There was evidence that the defendant, one of a group of males standing in an abandoned lot, approached the truck, and the officers asked him if they could purchase some heroin. The defendant retrieved the heroin, and the sale was consummated. The defendant then advised the officers to deal with him “or you’ll get ripped off.”
“Whether evidence is legally relevant is a question which is generally left to the discretion of the trial judge.” Commonwealth v. Chasson, 383 Mass. 183, 187 (1981). While we think it would not have been error to admit the evidence which the defendant sought to elicit, we cannot say, given the nature of the evidence on which the Commonwealth relied, that its exclusion constituted an abuse of discretion. See Commonwealth v. Doherty, 353 Mass. 197, 213-214 (1967), cert, denied, 390 U.S. 982 (1968); Commonwealth v. Hogan, 12 Mass. App. Ct. 646, 656-657 (1981); Commonwealth v. Bettencourt, 20 Mass. App. Ct. 923, 924-925 (1985).
3. The prosecutor’s closing argument. The comments of the prosecutor in his closing argument of which the defendant’s appellate counsel now complains were not objected to by trial counsel. Our review, therefore, is confined to a determination whether there is a substantial risk of a miscarriage of justice. See Commonwealth v. Daigle, 379 Mass. 541, 549 (1980). We conclude that there is no such risk.
During the course of his closing argument, the prosecutor said: “Please wade through some of the smoke that’s been thrown up in this case. You know, the defendant doesn’t want to talk about the drug deal. He wants to talk about how they
On appeal, the defendant plucks from the prosecutor’s statement one sentence — “You know, the defendant doesn’t want to talk about the drug deal.” — and argues that it constituted improper comment on the defendant’s failure to testify. The argument is frivolous. 10
The defendant also argues that the prosecutor’s use of the word “smoke” unfairly demeaned and discredited legitimate defense strategy. The prosecutor used the word to describe what he considered the defendant’s trial counsel’s emphasis on noncritical aspects of the evidence. As such, this was fair comment. See and compare Commonwealth v. Dunker, 363 Mass. 792, 798-800 (1973); Commonwealth v. Cheek, 374 Mass. 613, 618-619 (1978); Commonwealth v. Easterling, 12 Mass. App. Ct. 226, 230 (1981).
4. The judge’s instructions on the Commonwealth’s burden of proof. The defendant’s argument that the “isolated utterance” that proof beyond reasonable doubt “is not proof beyond all reasonable doubt” created a substantial risk of a miscarriage of justice is foreclosed by the holding of the Supreme Judicial Court in Commonwealth v. A Juvenile (No. 2), 396 Mass. 215, 217-220 (1985).
The defendant isolates expressions of the judge in his colloquy with counsel and in his response to the jury — “I don’t think I can answer this question . . “which I don’t think I’m permitted to do”; “it would be inappropriate for me . . . .” However, our review of the entire colloquy and response sufficiently persuades us that the judge was aware that he had the discretion to grant or deny the request.
There was no abuse of discretion in the denial of the request for a reading of a portion of the testimony of one witness. See Commonwealth v. Fitzpatrick, 18 Mass. App. Ct. 106,107-109 (1984), and cases cited; Commonwealth v. Hunter, 18 Mass. App. Ct. 217, 224 (1984).
6.
The sufficiency of the indictment under
“The test of the sufficiency of the indictment[ j is whether [it] ‘fully and plainly, substantially and formally’ describe^] the crimes or offenses for which the defendant ] [is] held to answer. Article 12 of the Declaration of Rights of the Massachusetts Constitution. See
Commonwealth
v.
Welansky,
316 Mass. 383, 395-396 (1944).”
Commonwealth
v.
Gill,
5 Mass. App. Ct. 337, 339 (1977). See
Commonwealth
v.
Burns,
8 Mass. App. Ct. 194, 195 (1979). An indictment must contain “a plain, concise description of the act which constitutes the crime or an appropriate legal term descriptive thereof.”
Here, the indictment was sufficient to inform the defendant that he was being charged with being a repeat offender under
Any perceived deficiencies in the indictment could easily have been cured by a request for a bill of particulars.
Judgments affirmed.
Notes
“As to the time when a ruling should be made on a motion by a defendant to bar his impeachment through prior convictions, it is desirable, if feasible, that this should occur at an early moment, since it may affect counsel’s conduct of the trial all down the line.” Commonwealth v. Diaz, supra at 81.
The defendant’s other convictions were for breaking and entering in the nighttime and larceny, larceny of a motor vehicle, operating a motor vehicle after suspension of license, possession of counterfeit bills with intent to pass, uttering forged checks and escape. All of the defendant’s convictions would appear to have been admissible under the conditions prescribed by
On appeal, the defendant does not argue that there was error in the judge’s ruling insofar as it related to the nondrug-related convictions. Indeed, at least some of those convictions were for crimes directly concerned with the defendant’s prior untruthfulness. See Commonwealth v. Diaz, supra at 81; Commonwealth v. Maguire, 392 Mass. 466,469 (1984), and cases cited.
Proposed Massachusetts Rule of Evidence 609(a) (1980) contains the same standard. Commonwealth v. Maguire, supra at 469 n.7.
“A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context.11 This is particularly true under
“Any possible harm flowing from a district court’s in limine ruling permitting impeachment by a prior conviction is wholly speculative. The ruling
[*] “Requiring a defendant to make a proffer of testimony is no answer; his trial testimony could, for any number of reasons, differ from the proffer. ” Compare Commonwealth v. Diaz, 383 Mass, at 81-82. Compare also Commonwealth v. Chase, 372 Mass. 736, 750-751 & n.8 (1977). is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant’s proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling. On a record such as here, it would be a matter of conjecture whether the District Court would have allowed the Government to attack petitioner’s credibility at trial by means of the prior conviction.
“When the defendant does not testify, the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction. If, for example, the Government’s case is strong, and the defendant is subject to impeachment by other means, a prosecutor might elect not to use an arguably inadmissible prior conviction.
“Because an accused’s decision whether to testify ‘seldom turns on the resolution of one factor,’ New Jersey v. Portash, 440 U.S. 450, 467 (1979) (Blackmun, J., dissenting), a reviewing court cannot assume that the adverse ruling motivated a defendant’s decision not to testify. In support of his motion a defendant might make a commitment to testify if his motion is granted; but such a commitment is virtually risk free because of the difficulty of enforcing it.
“Even if these difficulties could be surmounted, the reviewing court would still face the question of harmless error. See generally
United States
v.
Hasting,
461 U.S. 499 (1983). Were
in limine
rulings under
For examples of the conflicting views of Federal Courts of Appeal, see United States v. Cook, 608 F.2d 1175, 1183-1188 (9th Cir. 1979), cert, denied, 444 U.S. 1034 (1980); United States v. Kiendra, 663 F.2d 349, 352-353 (1st Cir. 1981); United States v. Luce, 713 F.2d 1236, 1237-1242 (6th Cir. 1983).
The motion to exclude evidence of the convictions was heard in the judge’s lobby; no record was made. It would have been better practice to have had a stenographic or electronic transcription of the hearing.
The motion was not renewed during trial. See Commonwealth v. Cavanaugh, 7 Mass. App. Ct. 33, 35 n.l (1979). Compare Commonwealth v. Elliot, 393 Mass. 824, 832 (1985).
Our holding should not be construed as discouraging early rulings on the admissibility of defendants’ prior convictions, see Commonwealth v. Diaz, supra at 81-82; Commonwealth v. Cavanaugh, 7 Mass. App. Ct. at 35 n.l, provided the judge is given sufficient information to enable him to undertake a meaningful exercise of discretion. Nor do we intend any suggestion that a judge, in the sound exercise of discretion, may not alter a previous in limine ruling, as long as that revision does not unfairly prejudice a defendant. See Luce v. United States, 469 U.S. at 41-42; Commonwealth v. Diaz, 383 Mass, at 82; Commonwealth v. Cavanaugh, 7 Mass. App. Ct. at35 n.l. Cf. Catania v. Emerson Cleaners, Inc., 362 Mass. 388, 390 (1972).
If the defendant’s argument in this respect had even slight merit, the judge’s clear and strong instructions that no inference could be drawn from the defendant’s failure to testify, on the presumption of innocence and on the Commonwealth’s burden of proof beyond a reasonable doubt were sufficient to negate any possible prejudice to the defendant.
“The Commonwealth further alleges this to be the second and subsequent offense, to wit: Unlawful possession of a controlled substance, class A, with intent to distribute, on the fifth day of January in the year of our Lord one thousand nine hundred and seventy-eight, in the Bristol County Superior Court sitting at New Bedford, and on the tenth day of November in the year of our Lord one thousand nine hundred and seventy-seven, in the Bristol County Superior Court sitting at New Bedford. (G. L. Chap. 94C, Sec. 32(b)).”