41 Mass. App. Ct. 904 | Mass. App. Ct. | 1996
At his trial on two indictments charging receipt of stolen property worth
From what the record or the briefs disclose, defense counsel did not suggest to the judge at the lobby conference that the judge’s cure might be worse than the disease, i.e., that the jury would be left to speculate that the prior felony was similar in kind to that for which the defendant was now standing trial. Such is the attack which counsel now makes on appeal of the Superior Court judge’s ruling. If defense counsel thought his client placed at a disadvantage by admission of an unidentified felony conviction, he was bound to make that objection known to the judge or could have had his client identify the nature of the prior conviction when he took the stand. The defense cannot in effect acquiesce in the judge’s ruling on introducing the prior conviction without identifying it as the lesser evil and then attack it on appeal. See Commonwealth v. Young, 401 Mass. 390, 404 (1987); Commonwealth v. Stovall, 22 Mass. App. Ct. 737, 738 (1986); Smith, Criminal Practice & Procedure § 1779 (2d ed. 1983). The only objection of record by defense counsel was to the admission of the prior conviction in any form.
Although we affirm the judgment because the point of objection was not properly preserved, the practice of papering over the nature of the prior conviction is not a salutary one. When the prior conviction is for a crime the same as, or closely resembling the offense being tried, admission of evidence of the prior offense may have unfair prejudicial effect because of the danger of a jury inferring that the defendant has a predisposition to that sort of crime. Commonwealth v. Maguire, 392 Mass, at 469. Commonwealth v. Whitman, 416 Mass. 90, 93 (1993). Conversely, if the prior crime is of a quite different sort, admission of a prior conviction is more likely to be limited in effect to the issue of credibility, and a judge acts within the bounds of discretion in receiving evidence of a prior conviction for that purpose. See Commonwealth v. Kowalski, 33 Mass. App. Ct. 49, 50 (1992). Here, the prior crime was a drug offense, not one which would have been unfairly prejudicial, in the context of G. L. c. 233, § 21, in a trial of indictments of receiving stolen property. The judge would have acted well within his discretion in allowing introduction of the prior conviction.
Masking the nature of the prior offense, as we have suggested, is more likely to affect the defendant unfairly than receipt in evidence of the unvarnished conviction. Having said that, if a defendant were to move expressly that the nature of the prior conviction be blocked out when used
Judgment affirmed.
The case was submitted on briefs.
Courts in other jurisdictions, operating on the basis of varying statutes and rules, have resolved the issue in varying fashion. Some courts have prohibited, or disapproved of, the identification of the prior offense, see, e.g., United States v. Powell, 50 F.3d 94, 102 (1st Cir. 1995); Commonwealth v. Richardson, 674 S.W.2d 515, 518 (Ky. 1984); State v. Olson, 231 Neb. 214, 222-223 (1989); McAmisv. Commonwealth, 225 Va. 419, 422 (1983), while others have concluded that the nature of the offense may, or should, be revealed. See, e.g., United States v. Guerue, 875 F.2d 189, 190 (8th Cir. 1989); State v. Chase, 490 A.2d 208 (Me. 1985); Acevedo v. State, 467 So. 2d 220, 225-226 (Miss. 1985); State v. Williams, 656 P.2d 450, 453 (Utah 1982); and Bradley v. State, 635 P.2d 1161, 1163 n.3 (Wyo. 1981).