Commonwealth v. Little

Spina, J.

(dissenting). I agree that the judge below stated an impermissible reason in his ruling to admit the defendant’s prior convictions, namely, that they were particularly probative of his credibility precisely because they were similar to the crimes charged in the complaint. Ante at 774. However, the judge’s erroneous reasoning should not necessarily mean that his ruling was incorrect. An incorrectly reasoned ruling nevertheless may be correct for a different reason, and thus may be affirmed. See Commonwealth v. Jones, 403 Mass. 279, 289 (1988); Commonwealth v. Reed, 23 Mass. App. Ct. 294 , 298 n.1 (1986). I believe that, notwithstanding the erroneous reasoning behind the judge’s ruling to admit the defendant’s prior convictions, his ruling was correct. Even if it was not correct, the defendant failed to show that it created a substantial risk of a miscarriage of justice. His conviction should be affirmed.

I agree that the court must go through a balancing of factors, and I agree that the prior convictions here are substantially similar to the crime charged, a factor which weighs heavily in the prejudice column. However, use of such convictions is not per se error, as the court acknowledges. Ante at 773, citing Commonwealth v. Whitman, 416 Mass. 90, 94 (1993).

I also agree that the defendant’s prior convictions are not strong indicators of truthfulness, ante at 775 n.6, but every qualifying prior conviction, as here, has some probative value on the question of credibility, and the Legislature has so determined. See Commonwealth v. Reed, 397 Mass. 440, 446 (1986) (Lynch, L, dissenting), quoting Advisory Committee Note to First Draft of Proposed Fed. R. Evid. 609(a), reprinted in 46 F.R.D. 161 , 297 (1969) (“A demonstrated instance of willingness to engage in conduct in disregard of accepted patterns is translatable into willingness to give false testimony”). This factor should be resolved in favor of the Commonwealth.

The court implies that the Commonwealth’s failure in the *777 trial court to argue that these were the defendant’s only prior convictions signifies that there were others by which the defendant could have been impeached. Ante at 775 n.6. See Commonwealth v. Whitman, supra at 95 . It is not the Commonwealth’s burden to show the existence of other convictions by which it could impeach the defendant. The burden is on the defendant to show the judge’s ruling was erroneous and caused a substantial risk of a miscarriage of justice. The defendant never argued in his motion in limine that the Commonwealth had other convictions by which he could be impeached and therefore these similar convictions should be excluded. Nor did he argue that the Commonwealth should be limited, in the alternative, to merely one of the prior convictions in question. It was his burden to present all material favorable to him for the balancing process. Because the defendant has failed to show the existence of other available prior convictions, I would resolve this factor in favor of the Commonwealth.

The court also concludes that because the prior convictions never were introduced at trial, factors concerning the effect of limiting instructions and whether the prosecutor referred to the convictions in his closing argument are not applicable in this case. I disagree. As the court acknowledges, these are factors to be considered in the balancing process before a judge decides to admit prior convictions for impeachment purposes. They are factors that we also must consider when deciding if the judge’s ruling was correct. “[W]e accept the basic premise that jurors can understand and will apply instructions that certain evidence is to be used by them for one purpose and not for another. Instructions concerning the jury’s use of evidence of prior convictions are not more difficult to understand and apply than many other instructions.” Commonwealth v. Leno, 374 Mass. 716, 719 (1978). We have said that a judge’s instructions limiting the use of a defendant’s prior convictions, both immediately after they are used and again in the general instructions, tend to lessen the possibility of unfair prejudice. Commonwealth v. Walker, 401 Mass. 338, 346 (1987). A judge is expected to do as much. See, e.g., Commonwealth v. Leno, supra at 718-719 . Limiting instructions are a significant factor that weigh in favor of the Commonwealth.

We have noted that a prosecutor’s decision to omit any reference to a defendant’s prior convictions during closing argument *778 has a similar salutary effect. Id. A judge has discretion to order a prosecutor to refrain from any such reference in closing argument. We have every reason to expect that a defendant will request such instructions and orders in the face of a ruling permitting the use of prior convictions, and we have every reason to expect that a prudent judge would take such precautions, sua sponte, and give a standard instruction, even if his own reasons for admitting the convictions were faulty. This factor should be weighed in favor of the Commonwealth.

Two additional factors were not considered here, namely, that a judge may consider “the importance of the defendant’s taking the stand, [and] the weight of the factor of the defendant’s credibility in the decision of the issues of fact.” Commonwealth v. Diaz, 383 Mass. 73, 81 (1981). “A judge can prepare himself for an early ruling by inquiring about the nature of the proof the parties intend to present, including what the defendant himself would offer if he took the stand; and an advance ruling may be made contingent on the evidence coming forward as thus indicated.” Id. at 82 . These factors should be considered, because a judge cannot intelligently assess whether to admit prior convictions without knowing what a defendant will say. The defendant has failed to make an offer of proof and show how his testimony was important to his defense. We may infer from the absence of an offer of proof that his testimony would not likely have aided his defense.

I believe the only factor that weighs in favor of the defendant in the balancing process is the similarity of his prior convictions to the crime charged. All others weigh in favor of the Commonwealth. The court acknowledges that the similarity between the prior convictions and the crime charged is but one factor in a balancing process, and although it is a significant factor, it alone is not enough to tip the balance. Ante at 773-774. See Commonwealth v. Bly, 444 Mass. 640, 654 (2005); Commonwealth v. Whitman, 416 Mass. 90, 94 (1993); Commonwealth v. Fano, 400 Mass. 296, 301-305 (1987); Commonwealth v. Reid, 400 Mass. 534, 538 (1987). There is every reason to believe that forceful limiting instructions and an order that the prosecutor make no reference to the prior convictions in closing argument adequately would have addressed any potential for unfair *779 prejudice and would have allowed the Commonwealth to have the benefit of otherwise useful evidence of credibility. See Commonwealth v. Crouse, 447 Mass. 558, 565 (2006); Commonwealth v. Whitman, supra at 93 . In my view, the ruling permitting the use of this impeachment evidence is warranted by a proper application of the balancing analysis we have approved. I would conclude there was no error.

The court concludes that the judge’s ruling was error because his reasoning for admitting the prior convictions was erroneous. Ante at 774. This analysis proceeds from reasoning used in other cases, see Commonwealth v. Fano, supra at 302 n.11, and cases cited, which I believe is faulty. The appeal is from the ruling, not the reasoning. The judge’s reasoning in these circumstances is not determinative; it is the correctness of the ruling to which we should look. For example, if a judge’s reasons for admitting a document or a photograph are faulty, we look to see whether there was some valid reason that would have supported the ruling. If such a reason exists, the ruling will be affirmed. See Commonwealth v. Jones, 403 Mass. 279, 289 (1988); Commonwealth v. Reed, 23 Mass. App. Ct. 294 , 298 n.1 (1986). In no other area do we confine our inquiry to the judge’s reasoning. There is no reason to believe the judge would have informed the jury of his reasoning. There is no reason to believe the judge would not have given a standard instruction and correctly charged the jury on the proper use of prior convictions for impeachment. The judge’s thought process does not determine the correctness of his ruling.

At the end of the discussion of the balancing process the court states that “ ‘admission of evidence of prior convictions solely because of the similarity of the conviction to the crime being tried is reversible error’ (emphasis in original).” Ante at 774, quoting Commonwealth v. Fono, supra at 302 n.11. This sounds like per se error. If indeed our jurisprudence were so clear, there would have been no need to go through the balancing process undertaken by the court. The cases cited in Commonwealth v. Fono, supra, follow the same pattern. If the use of similar convictions constitutes reversible error, as the court concludes, then there was no need to discuss the judge’s erroneous reasoning in Commonwealth v. Guilfoyle, 396 Mass. 1003 (1985), there was no need to discuss the judge’s erroneous reasoning or to apply *780 the balancing process in Commonwealth v. Roucoulet, 22 Mass. App. Ct. 603, 608-610 (1986), and there was no need to apply the balancing process in Commonwealth v. Fano, supra. The language in the Fano case on which the court relies conflicts with a more recent holding that it is not per se error to impeach with substantially similar convictions, and that a balancing process must be used. Commonwealth v. Whitman, supra at 94 .

Even if the judge’s ruling were erroneous, the defendant has failed to show that it has caused a substantial risk of a miscarriage of justice. In Commonwealth v. Crouse, supra at 564, 565 , we held that a defendant who does not testify may challenge, on appeal, a decision by a trial judge to allow impeachment by use of prior convictions. We never suggested, however, that the rule we adopted in the Crouse case would reheve a defendant of his burden to create an adequate record for appellate review, such as making an offer of proof as to the substance of his proffered testimony. The record on appeal is silent regarding the defendant’s proffered testimony, including his explanation for keeping fifteen small baggies of marijuana in the crotch of his pants, or how he happened to have $254 in his pockets, predictably obvious questions that would have arisen on cross-examination. A defendant cannot improve his position by not testifying, as compared to a defendant who testifies and thereby creates a record by which an appellate court may consider the significance of his testimony as a factor in the balancing process. See Commonwealth v. Chase, 372 Mass. 736, 749 (1977).

The decision not to testify in response to a ruling that admits similar prior convictions for impeachment does not implicate any constitutional right. See id. at 751 (this approach “has not commended itself as raising a valid due process challenge”). See also Commonwealth v. Crouse, supra at 566 n.7, and cases cited. The defendant’s failure to make an adequate record from which we properly may decide whether there has been a substantial risk of a miscarriage of justice leads to the inescapable conclusion that he has failed to satisfy his burden.

The court suggests that the “decision [to] admit the prior convictions effectively prevented [the defendant] from testifying.” Ante at 775. This is a finding of fact for which there is no record support. It also ignores the result in cases where a defendant did *781 testify and was impeached by prior convictions that were substantially similar to the crimes charged, and the judgment of conviction was reversed. See, e.g., Commonwealth v. Roucoulet, supra at 608 . Moreover, there is nothing in the record that reveals the number of times testifying defendants have been acquitted, notwithstanding impeachment by convictions similar to the crime charged. Today’s decision encourages defendants to refrain from testifying and from making an offer of proof. It also bodes poorly for the Commonwealth in cases where Commonwealth witnesses may be impeached with prior convictions, but the defendant might not be impeachable if the convictions are for similar offenses, a situation that distorts the fact-finding process.

Although the Commonwealth’s case is not overwhelming, I do not believe this case is as close as the court suggests. Ante at 775. The defendant had fifteen packets of marijuana secreted in the crotch of his pants, and he had $254 in his pockets. Unlike the defendant in Commonwealth v. Roucoulet, supra at 609 , who had but a single marijuana cigarette, the defendant’s prior convictions here do not create the unfair prejudice by overkill that was presented in that case.

I do not believe there was error, and I do not believe the defendant has shown a substantial risk of a miscarriage of justice. I respectfully dissent.