Commonwealth v. DiMarzo

Hennessey, J.

(concurring). I concur in the court’s affirmation of this conviction. However, I believe that discussion is advisable as to the defendant’s claim that there was constitutional error in the admission in evidence of his prior conviction of carnal abuse of a female child. The prior conviction evidence was received in a form and manner appropriate under the statute, G. L. c. 233, § 21, and the judge in his instructions appropriately limited the application of the evidence to the issue of the defendant’s credibility. *679 Presumably the defendant contends that he was denied due process of law. Even if that were true, I would find the error to be harmless, in view of the overwhelming evidence of the defendant’s guilt apart from this prior conviction.

More important, I conclude that it has apparently been established that there is no error under the United States Constitution in the admission of such evidence. Spencer v. Texas, 385 U. S. 554, 560-562 (1967). 1 This court likewise has found no unconstitutionality both in the instant case, and in prior cases. See Commonwealth v. Ladetto, 353 Mass. 746 (1967). See also Commonwealth v. Subilosky, 352 Mass. 153 (1967); Commonwealth v. West, 357 Mass. 245 (1970). In the light of these precedents, it is perhaps of little importance that I may not be persuaded that there can never be constitutional significance in a case where the proof of a defendant’s prior convictions works great prejudice against him on the issue of guilt. See generally, note, 37 U. of Cinn. L. Rev. 168 (1968).

Nevertheless, apart from constitutional issues, the effect of the application of G. L. c. 233, § 21, deserves attention. 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 *680 as proof of guilt. Further, experience teaches that the problem is one of frequent occurrence.

Even in a case where a trial judge is convinced that the admission of a defendant’s prior convictions will result in an injustice, he has no discretion to exclude the evidence since this court has ruled that the only option under the statute resides in the prosecutor and not the judge. Commonwealth v. West, 357 Mass. 245, 248-249 (1970). The prejudice to the defendant, as often as not, is that he dares not exercise his right to testify in his own defence in the light of his knowledge that prior convictions will be used in cross-examination. Cautionary instructions to the jury concerning the defendant’s privilege not to testify can be of little assistance to him in such a case.

What is involved here is the necessity of fairness in trials. Consequently, questions of constitutional error aside, there is significance in the rulings of the Supreme Court on the subject of fair trials. Due process of law is afforded to every defendant under the Fourteenth Amendment, through which the Sixth Amendment confers the right to a trial by an impartial jury. The defendant has similar guaranties under art. 12 of the Declaration of Rights of the Constitution of the Commonwealth. These guaranties are violated, and the defendant is deprived of a fair trial, when proceedings give rise to a probability of prejudice. Estes v. Texas, 381 U. S. 532, 542-543 (1965). In recent years the Supreme Court in reversing criminal convictions, has lent frequent emphasis to the guaranties of due process of law and a fair trial before an impartial jury. Ward v. Monroeville, 409 U. S. 57 (1972). Webb v. Texas, 409 U. S. 95 (1972). Cool v. United States, 409 U. S. 100 (1972). Ham v. South Carolina, 409 U. S. 524 (1973). Gagnon v. Scarpelli, 411 U. S. 778 (1973). Wardius v. Oregon, 412 U. S. 470 (1973). That court has also found a denial of due process in the application of certain unique rules of evidence in a criminal trial. Chambers v. Mississippi, 410 U.S. 284 (1973).

The danger of prejudice most clearly arises when the prior convictions are similar in nature to the indictments on trial. *681 In this case, for example, the essential facts are that the Commonwealth’s proof under the indictment was of a long course of sexual abuse of a young woman, culminating in her murder, and the prior conviction concerned carnal abuse of another young female. It is firmly and 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. Miller v. Curtis, 158 Mass. 127 (1893). Commonwealth v. Banuchi, 335 Mass. 649, 654 (1957). Commonwealth v. Chalifoux, 362 Mass. 811, 815-816 (1973). However, in Spencer v. Texas, 385 U. S. 554, 560-562 (1967), the Supreme Court held that prior convictions of a defendant could properly be received in evidence where it was demonstrated that an interest of the State was served and the admissibility had been established by long-standing law. It was stated that the defendant’s interests are protected by limiting instructions.

It is reasonable for us to be confident that in most cases limiting instructions accomplish their intended purpose. Nevertheless, in cases like the instant one, where the evidence subject to limitations has an extremely high potential for unfair prejudice, we have a duty to be skeptical as to the effectiveness of limiting instructions. They have been characterized by Judge Learned Hand as “the recommendation to the jury of a mental gymnastic which is beyond, not only their power, but anybody’s else.” Nash v. United States, 54 F. 2d 1006, 1007 (2d Cir. 1932). “The naive assumption that prejudicial effects can be overcome by instructions to the jury ... all practicing lawyers know to be unmitigated fiction.” Krulewitch v. United States, 336 U. S. 440, 453 (1949) (Jackson, J., concurring).

The case of Bruton v. United States, 391 U. S. 123, 128-137 (1968), similarly repudiates the assumption that limiting instructions can be effective. In that case, at a joint trial, the confession of one defendant which inculpated the other was admitted in evidence with instructions to the jury that the proof was received against only the confessor. The Supreme Court, in reversing the conviction of the prejudiced defend *682 ant, relied upon his right of confrontation under the Sixth Amendment, since he could not cross-examine the confessor, who did not testify. In my view the result could just as soundly be premised upon broader grounds of due process in that the proceedings, including the inability to cross-examine, denied him a fair trial before an impartial jury. The reasoning of the Bruton case is highly relevant here since that case recognized the futility, even the absurdity, of expecting a jury in some circumstances to conform to limiting instructions.

Prior convictions, even as applied only to the credibility issue, have little or no probative value in most instances. Prior crimes of violence, in particular, have no discernible bearing upon a defendant’s reliability for truthfulness. In the Bruton case, the confession had strong probative force against the confessor, and the “viable alternative” to preserve its valid purpose in proof was to sever the trials of the codefendants. 391 U. S. at 134 . There is only one appropriate remedy when evidence of a defendant’s prior conviction is offered which is highly prejudicial and which has little or no probative value even upon the limited issue for which it is received. That remedy is to exclude it, but in this Commonwealth the judge has no power to exclude it. Commonwealth v. West, 357 Mass. 245 (1970).

If the statute allowed discretion in the trial judge, injustice could be avoided. For example, judges routinely and scrupulously direct trial proceedings so as to avoid premature jury awareness of alleged prior convictions where such prior convictions are part of the gravamen of the indictment. G. L. c. 278, § 11 A. Cf. G. L. c. 94, §§ 212A, 217; c. 265, §§ 13B, 22A, 23; c. 266, § 40; c. 279, § 25. Alleged abuse of discretion would be subject to appellate review. Assuming that this court continues to regard the rulings in the West case as correct, and declines to overrule that decision, the only amelioration of the problem appears to lie in the most careful attention by trial judges to the limiting instructions. For example, see the instruction given in Commonwealth v. Bumpus, 362 Mass. 672, 682-683 (1972). In some instances, *683 too, district attorneys may find it consistent with justice to refrain from offering proof of certain prior convictions. Otherwise, the matter lies with the Legislature. It has been stated that some possible legislative solutions are: (1) to allow no impeachment by conviction when the witness is the accused: (2) to allow proof only of conviction for perjury and similar crimes reflecting untruthfulness; (3) to exclude impeachment by conviction if the crime is similar to that for which the defendant is presently being tried; (4) to allow conviction evidence only if the accused first introduces evidence of character for truthfulness; (5) to leave the matter to the discretion of the trial judge. McLaughlin & Leonard, Evidence, 1969 Ann. Surv. of Mass. Law, § 19.1. The Legislature has previously acted to avoid prejudice to the defendant in the similar situation where a prior offence is an element of the current indictment. G. L. c. 278, § 11 A. More recently, by enacting G. L. c. 278, § 2A (St. 1968, c. 721, § 2), the Legislature required that conspiracy and related substantive crimes must be separately tried. This statute cured the prejudice resulting when the jury which decides the substantive charge hears evidence admissible only as to the conspiracy charge.

However, it may be argued that the rationale of the Spencer case has been undercut by subsequent Supreme Court decisions and that the issue is thus still open. See Bruton v. United States, 391 U. S. 123 (1968); Chambers v. Mississippi, 410 U. S. 284 (1973). But see McGautha v. California, 402 U. S. 183, 209 (1971), which cites the Spencer case approvingly.

It is also noteworthy that the proposed Federal Rules of Evidence (as approved by the Supreme Court November 20, 1972) ([November 21, 1972] 41 U. S. L. Week 4021), contain a provision for the admission of prior conviction evidence similar to the relevant Massachusetts statute. Rule 609, but see Rule 403, allowing the exclusion of relevant evidence in the discretion of the trial judge where the danger of unfair prejudice substantially outweighs its probative value. The rules were submitted to the Congress in accordance with the provisions of 18 U. S. C. §§ 3771 and 3772 (1970), and 28 U. S. C. §§ 2072 and 2075 (1970). Their effective date has been delayed by statute. P. L. 93-12 (March 30, 1973), 87 Stat. 9 . Most recently, the Subcommittee on Criminal Justice of the House Judiciary Committee has proposed amendments to the rules, including a revision of Rule 609 to limit automatic admissibility of prior conviction evidence to crimes involving dishonesty or false statement, with evidence of other felonies to be admissible unless the judge determines the danger of unfair prejudice outweighs its probative value. ([July 17, 1973] 42 U. S. L. Week Supp.)