Commonwealth v. Brown

Botsford, J.

(dissenting, with whom Marshall, C.J., and Ireland, J., join). At the defendant’s trial the Commonwealth was allowed to introduce fourteen prior convictions: seven of larceny; one of resisting arrest; four of malicious destruction of property; and two of possession of a class B substance. I agree with the Appeals Court that the admission of these prior convictions was error requiring a new trial on the home invasion charge, 1 although I do not entirely agree with that court’s reasoning.

*210 1. Contrary to the conclusion of the Appeals Court, I believe the defendant did preserve his claim of this error. Through counsel, he objected to the Commonwealth’s attempt to use the prior convictions for impeachment purposes. He raised the objection immediately before the trial began, in response to the Commonwealth’s motion in hmine seeking to admit evidence of the convictions. The defendant first objected generally “for the obvious reasons,” and then supplemented that objection with two specific points: the two convictions were too “close in time,” and larceny was too similar to the charged armed robbery. The judge ruled that the Commonwealth could introduce the records of conviction of the fourteen offenses now at issue. That the defendant, following the judge’s implicit overruling of his objections, chose at trial to introduce evidence of the convictions himself, in an attempt to blunt their impact on the jury, did not, in my view, constitute a waiver or abandonment of his earlier-stated objections; rather, it represented an attempt to deal strategically with the consequences of having had his objections overruled. I consider the defendant’s objections, particularly the general objection “for the obvious reasons,” to include at least those factors on which this court has repeatedly relied to weigh the probative value of a prior conviction against its potential prejudice. Accordingly, I conclude that the claim of error was preserved, and the defendant is entitled to a new trial unless “the [court’s] conviction is sure that the error did not influence the jury, or had but very slight effect.” Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983).

2. Criminal convictions of all kinds, in many circumstances, can be relevant to the credibility of the defendant-as-witness because “a defendant’s earlier disregard for the law may suggest to the fact finder similar disregard for the courtroom oath.” Commonwealth v. Drumgold, 423 Mass. 230, 249 (1996), quoting Commonwealth v. Roucoulet, 22 Mass. App. Ct. 603, 608 (1986). However, “[t]he admission of evidence of a prior con *211 viction, particularly a conviction of a crime not involving the defendant’s truthfulness and one closely related to or identical to the crime with which the defendant is charged, may well divert the jury’s attention from the question of the defendant’s guilt to the question of the defendant’s bad character.” Commonwealth v. Maguire, 392 Mass. 466, 469 (1984). See Commonwealth v. DiMarzo, 364 Mass. 669, 679-680 (1974) (Hen-nessey, J., concurring) (“I believe that common sense and experience have led trial judges and trial lawyers to conclude that jurors do in fact regard the prior convictions of the defendant in many cases as proof of guilt”). Proper limiting instructions may have only limited effectiveness in preventing the inevitable prejudice that results. See id. at 681 (Hennessey, J., concurring). Because of the very great danger of prejudice inherent in admitting prior convictions as evidence of credibility under G. L. c. 233, § 21, we allow judges to exercise their discretion when deciding whether to allow such evidence, Commonwealth v. Knight, 392 Mass. 192, 194 (1984), and those discretionary decisions are subject to appellate review, Commonwealth v. Maguire, supra at 470 .

In reviewing a trial judge’s decision to admit prior convictions we determine whether there was an abuse of discretion because the danger of unfair prejudice outweighed the probative value of the evidence of a prior conviction for the purposes of impeachment. Id. Our cases have suggested many factors that may be considered by a trial judge in making this determination, including: whether the prior conviction is substantially similar to the crime with which the defendant is charged, Commonwealth v. Drumgold, 423 Mass. at 250 ; whether the prior conviction is for a crime involving truthfulness, Commonwealth v. Maguire, 392 Mass. at 469 ; whether the defendant had other convictions that could have been used to impeach him, Commonwealth v. Whitman, 416 Mass. 90, 95 (1993); whether the judge provided limiting instructions, Commonwealth v. Walker, 401 Mass. 338, 346 (1987); and whether the prosecutor mentioned the convictions in his closing argument, id.

Of the factors establishing the potential prejudice to the defendant, chief among them is whether the prior conviction bears a substantial similarity to the charged offense. “It is firmly and *212 wisely established in our law that no defendant should be convicted of a crime by proof of his reputation or propensity to commit similar crimes.” Commonwealth v. Fano, 400 Mass. 296, 303 (1987), quoting Commonwealth v. DiMarzo, 364 Mass. at 681 (Hennessey, J., concurring). The court in the present case concludes, with no explanation, that “[t]he convictions admitted here are not substantially similar to the charged offenses in any way that we have heretofore recognized.” Ante at 203. I believe the similarity cannot be discounted so quickly. According to the Commonwealth, the defendant crashed through the victim’s door holding a large knife in his hand, demanded money, and fled after the victim handed over twenty dollars. I agree with the Appeals Court that when viewed together, the defendant’s prior convictions of larceny, resisting arrest, and malicious destruction of property could have described to the jury a person who habitually steals, can be violent, and abuses the property of others. This behavior is sufficiently similar to that alleged by the Commonwealth in the present case that the potential for prejudice thereby created should be one factor in this court’s review. The facts of this case may not warrant a conclusion that the decision to admit the defendant’s prior convictions was erroneous based solely on their similarity to the crimes charged. 2 However, when substantial similarity is considered in conjunction with the number of convictions presented, the error becomes clear.

The court in this case simply ignores the potential for prejudice inherent in the admission of a large number of prior convictions. While the court is correct that we have never found the admission of numerous prior convictions to be an abuse of discretion, there certainly are cases that have considered their use to be problematic. See, e.g., Commonwealth v. Reid, 400 Mass. 534, 537-540 (1987) (counsel’s failure to object to admission of defendant’s fourteen prior convictions constituted ineffective assistance of counsel, but no reversal required because in circumstances of case, no showing that exclusion of some of same offenses would have markedly aided defendant); Commonwealth v. Pierce, 66 Mass. App. Ct. 283, 289-290 (2006) (judge appropriately excluded multiple convictions for identical *213 offenses to avoid “piling on” prior convictions); Commonwealth v. White, 48 Mass. App. Ct. 658, 661 (2000) (“there is significant prejudicial potential in allowing even a well-instructed jury to learn that a defendant has a large number of prior convictions”). The potential for prejudice in this case was present in both the aggregate number of convictions presented to the jury and the number of convictions for each type of crime, especially of the similar offenses of larceny (seven convictions) and malicious destruction of property (four). With each new crime and each new conviction presented, the prejudice to the defendant increased, while the probative value of successive convictions on the issue of credibility was less and less. 3

The court today bases its conclusion on the language in G. L. c. 233, § 21, that allows prior convictions of all kinds, subject only to certain time limitations, regardless of their probative value or potential for prejudice. The court reasons that because the Legislature has not limited the number of convictions to be admitted under the statute, we must presume that the Legislature has rejected the policy concerns raised by the admission of large numbers of convictions, and that “[t]he only way to avoid application of the statute in this case would be to conclude that the statute is unconstitutional as applied.” Ante at 204. Contrary to the court’s characterization of this dissent, I make no claim, spoken or unspoken, that G. L. c. 233, § 21, is unconstitutional as applied in this case. More generally, the court’s reasoning is not consistent with our cases on the subject. It is true that the Legislature has never set a limit on the number of convictions that may be admitted for impeachment purposes under § 21. But, as the court acknowledges, it is also true that § 21 imposes *214 no limitation on the use of convictions that are substantively similar to the charged offense, and yet this court has long encouraged trial judges to consider the potential for prejudice that the use of such convictions may have. Over thirty years ago, in Commonwealth v. Chase, 372 Mass. 736, 749-750 (1977), this court held that “[ajlthough ... the statute does not give the judge any discretion to exclude the evidence when the prosecutor in his discretion offers it, we would not deny the right of a judge to avoid any question of unfairness by excluding such evidence in a situation where the likely prejudice to the defendant is most intense.” After Chase , our cases have held that, the language of the statute notwithstanding, logic and fairness require a judge to exercise discretion in allowing or excluding prior convictions, a discretion that is subject to judicial review. See, e.g., Commonwealth v. Maguire, 392 Mass. at 470 . 4 My dissent in this case simply applies these established principles.

The defendant’s credibility was a central issue at trial and the defendant acknowledged in his testimony that he was willing to lie in order to obtain money for drugs. Once the defendant impeached his own credibility by his testimony, the importance to the Commonwealth of impeachment through prior convictions decreased. Moreover, the probative value of each conviction was undermined by the total number of convictions. While the first few convictions might have cast doubt on the defendant’s credibility, the thirteenth and fourteenth could have been of only minimal aid to the jury on the only proper issue of impeachment. This is particularly true for multiple convictions of the same offense: the jury can hardly be aided in their credibility determination by three or four convictions of an identical crime. In this case the jury was presented with seven prior convictions of larceny. It is difficult to imagine that the jury would continue to see this evidence as implicating only the issue of credibility, and not as proving the defendant’s bad character as a person with a propensity to commit crimes and, in particular, to steal. 5

*215 In sum, I conclude that the admission of evidence concerning the defendant’s fourteen prior convictions, including the multiple convictions of offenses that collectively bore a distinct similarity to the charges in this case, was error. As the Appeals Court, in my judgment, correctly observed, “the propensity inference springing from the convictions may well have diverted the jury from their responsibility of assessing whether the defendant committed the charged crimes, and converted the trial to an assessment of the defendant’s bad character.” Because the error was preserved, and because I “cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error,” I also “cannot say that the judge’s error . . . was not prejudicial” (quotation and citation omitted). Commonwealth v. Flebotte, 417 Mass. at 353 . I respectfully dissent.

The defendant argues only that this error requires a new trial for tire home *210 invasion conviction, for which he contends the evidence was not overwhelming. He does not seek a new trial for the breaking and entering and receiving stolen property convictions under this theory; they are excluded from my analysis.

To the extent that the Appeals Court based its conclusion solely on the issue of similarity of convictions, I do not agree with that court.

This court has considered the availability of other, less prejudicial convictions when evaluating a judge’s decision to allow a prior conviction. See Commonwealth v. Whitman, 416 Mass. 90, 95 (1993). When the only conviction available is of a similar crime, the judge may have more discretion to admit the record of that conviction. See id. See also Commonwealth v. Chartier, 43 Mass. App. Ct. 758, 763 (1997). By the same token, a judge should exclude evidence of more prejudicial similar convictions when less similar convictions are available for impeachment purposes. See Commonwealth v. Whitman, supra. There were clearly less prejudicial options available for impeaching the defendant in this case that would have provided nearly identical probative value. The simplest alternative would have been for the judge to have excluded multiple convictions for the same crime.

I note that since Commonwealth v. Chase, 372 Mass. 736 (1977), and cases that have followed it, the Legislature has not seen fit to amend G. L. c. 233, § 21, in any manner that would signal legislative disapproval of the “judicial gloss” {ante at 204) added to that statute.

The Commonwealth argues that by acquitting the defendant of the charged *215 crimes of armed assault in a dwelling and armed robbery, the jury demonstrated that in certain critical respects they credited the defendant’s testimony over that of the victim, and therefore the defendant has no basis to argue that he suffered a substantial risk of a miscarriage of justice on account of the evidence concerning his fourteen prior convictions. The argument is beside the point. The unfair prejudice to the defendant from admission of evidence concerning his fourteen prior convictions did not come from the fact that the convictions might have caused the jury to disbelieve him — in fact, that is the one point on which they were probative. Rather, the prejudice that is of concern relates to the jury’s possible use of these multiple, similar convictions as evidence that the defendant was a bad man or in any event a career criminal who probably committed the crimes charged.