Opinion
No. 97-0192-8, 10
August 18, 1999
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT JAMES N. ELLIS JR.'S MOTION TO EXCLUDE EXTRINSIC EVIDENCE
INTRODUCTION
On July 21, 1999, this matter was before this Court for hearing on the motion of the defendant to exclude from his trial certain evidence which, he alleges, is extrinsic to the issue to be decided in his case now scheduled for trial beginning September 15, 1999. Specifically, the defendant argues in his motion that the Commonwealth should be precluded from offering evidence in its case-in-chief of his legal representation of four clients in circumstances that have no relationship to the facts alleged in support of the indictment to be tried.
The Commonwealth argues that the evidence is admissible in its case-in-chief to show intent, absence of mistake, common pattern of conduct, or scheme. In the alternative, the Commonwealth suggests that, as part of its case-in-chief, it intends to introduce statements against interest made by the defendant at collateral proceedings, and argues that it should be allowed, also as part of its case-in-chief, to impeach the defendant's exculpatory explanation of his actions which are the subject of these statement with evidence of the defendant's conduct.
For the following reasons, the defendant's motion will be ALLOWED.
BACKGROUND
In its indictment, the Commonwealth charges that the defendant, James N. Ellis Jr., an attorney with offices in Worcester, Massachusetts, assisted one David Formoso, his client, in asserting a fraudulent workers' compensation claim against St. Paul Fire and Marine Insurance Co. regarding an accident that had purportedly occurred on November 17, 1989 at the Westford Regency in Westford, Massachusetts. The Commonwealth alleges that Formoso, with Ellis's assistance, concealed from St. Paul the fact that he had previously, and for a time simultaneously, pursued another workers' compensation claim under the name Denis Milan, for a similar, prior injury occasioned in the course of his employment at Victory Button Company, in Leominster, Massachusetts, on March 25, 1989.
St. Paul began paying workers' compensation benefits to Formoso shortly after the November 1989 accident. In 1993, however, St. Paul received a physician's report indicating that Formoso could return to light duty. As a result, in December of 1993, St. Paul filed a complaint with the Massachusetts Department of Industrial Accidents seeking to discontinue Formoso's benefits; and subsequently, based on information received from the Insurance Fraud Bureau of Massachusetts to the effect that Formoso's entire claim might be fraudulent, sought to amend its December 1993 complaint to include claims for fraud and recoupment of benefits. At a DIA conference in June of 1994, Ellis admitted that he knew Formoso was the same person as Milan during the time he represented him on both claims.
On June 13, 1994, the DIA (Sumner, J.) ordered Formoso's benefits discontinued but did not rule on the motion to amend, that is, the judge did not rule on the possibility that Formoso's entire claim might be fraudulent. St. Paul appealed the DIA order, seeking a ruling on the fraud and recoupment claims; however, it did not prosecute the appeal.
In December of 1994, St. Paul filed a complaint in United States District Court for the District of Massachusetts against Ellis Ellis, et al. seeking monetary damages on the common law claims of negligence and fraud. (Civil Action No. 95-10190-GAO). At a deposition taken in connection with that litigation, and at the trial, Ellis again admitted his knowledge of the dual identity during the course of his representation.
James N. Ellis Jr., Debra Kagan, Robert J. Marquis, Richard D. Surrette, William F. Russell, Joan Trottier, Anthony Ranauro, and David Formoso, a.k.a. Denis Milan.
At the DIA conference, at his deposition, and at the civil trial, Ellis explained that Formoso told him that he, Formoso, had immigration problems that would be exposed if Ellis revealed his dual identity. Ellis claims he thus concealed Formoso's dual identity because he believed that attorney-client confidentiality obliged him to respect his client's position. Ellis also stated that neither he nor his client had intended to defraud St. Paul because the two claims were separate and successive in time such that the insurance companies were each properly responsible for distinct injuries. Further, Ellis stated that, according to workers' compensation laws, even if the two injuries overlapped, St. Paul would still be liable for the aggravation of the injury, such that there was no fraud perpetrated against them. Ellis stated that he had never before, or since, been presented with a similar fact situation to that which Formoso had presented.
DISCUSSION
At the trial of the within indictments, the Commonwealth seeks to offer extrinsic evidence to prove that, in the Formoso case, Ellis acted with an intent to defraud, that he did not act by mistake, and that his conduct was part of a pattern of conduct or scheme. In doing so, the Commonwealth apparently intends to offer evidence in its case-in-chief about the defendant's alleged fraudulent conduct in claims filed by Nelson Omar Darosa, Maria Alonso, Luis Alberto Delduca, and Federico Williamson, all of whom were clients of the defendant. In the alternative, the Commonwealth suggests that once it presents evidence of Ellis's admissions made at a DIA conference, his deposition, and his testimony at the civil trial, it will present the extrinsic evidence to impeach those statements.
The Commonwealth's evidence consists of allegations that Ellis pursued a total disability claim for Darosa, under an alias, even though Darosa was in a very minor accident at work. The Commonwealth alleges that Darosa was also employed under his true name, at another employment site, while collecting said benefits. The Commonwealth also alleges that Ellis knew of the alias and the true nature of Darosa's injuries, and still represented him in his fraudulent claims.
The Commonwealth's evidence consists of allegations that Ellis, while pursuing a fraudulent workers' compensation claim for Alonso, encouraged her to seek employment using a different name. The Commonwealth also alleges that Ellis suggested that Alonso have an accident at the second employment site and file a fraudulent workers' compensation claim under the alias.
The Commonwealth's evidence consists of allegations that Ellis told Delduca that if he needed money he should seek employment and then have an accident for which he could file a claim. Ellis pursued the fraudulent workers' compensation claim under the alias Delduca had been using at the employment site. Delduca also staged a motor vehicle accident and Ellis Ellis represented him on the motor vehicle insurance claim. When Delduca later pursued a genuine workers' compensation claim, Ellis encouraged Delduca to conceal his prior medical history. Delduca staged a second motor vehicle accident, on which Ellis Ellis represented him.
The Commonwealth's evidence consists of allegations that Williamson pursued several claims for the same injuries under different names and social security numbers. The Commonwealth asserts that Ellis knew of the fraudulent claims and also instructed him not to reveal his prior medical history.
A. THE PROPOSED USE OF EXTRINSIC EVIDENCE TO SHOW INTENT, ABSENCE OF MISTAKE, COMMON PATTERN OR SCHEME
As a general rule, evidence of a person's character is not admissible to prove that he acted in conformity with that character on a particular occasion. Commonwealth v. Montanino, 409 Mass. 500, 505 (1991). This means that the prosecution is precluded from presenting evidence that the defendant is a violent person, Commonwealth v. Kozec, 399 Mass. 514, 525 (1987), or has committed other violent acts such that a jury could infer that he committed the crime charged. Commonwealth v. Mandell, 29 Mass. App. Ct. 504, 507 (1990), citing Maillet v. ATF-Davidson Co., 407 Mass. 185, 188 (1990). See also Commonwealth v. Fordham, 417 Mass. 10, 22 (1994) (evidence of prior bad acts inadmissible to prove defendant's propensity to commit the kind of crime with which he is charged); Commonwealth v. Helfant, 398 Mass. 214, 224 (1986) ("It is well settled that the prosecution may not introduce evidence that the defendant previously has misbehaved, indictably or not, for the purposes of showing his bad character or propensity to commit the crime charged. . . .").
The rule of exclusion with respect to propensity evidence is premised not on principles of relevancy, for such evidence may be relevant but, rather, on the belief that such evidence "forces the defendant to answer accusations not set forth in the indictment, confuses his defense, diverts the attention of the jury, and may create undue prejudice against him." Commonwealth v. Clifford, 374 Mass. 293, 298 (1978). It also does not necessarily follow that, "because the defendant committed a similar offense on another occasion, he committed the crime for which he is being tried." Commonwealth v. Stone, 321 Mass. 471, 473 (1947).
If an accused opens the door by offering evidence of his good character, the prosecution may present rebuttal evidence of the defendant's bad character. Liacos, supra at § 4.4.2.
Although inadmissible to prove conduct in conformity with a particular character trait, evidence of specific acts may be relevant for another purpose. Fordham, 417 Mass. at 22; see also Commonwealth v. Reynolds, 429 Mass. 388, 395 (1999). For example, courts may allow into evidence other crimes, wrongs, or acts if they are relevant in establishing motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, a particular way of doing an act, or a particular skill. Commonwealth v. Otsuki, 411 Mass. 218, 236 (1991). The theory behind this admissibility is that the evidence tends to prove other facts relevant to the ultimate issues in the case. Commonwealth v. Trapp, 396 Mass. 202, 206 (1985); however, such prior bad act evidence should be excluded if the court determines that the probative value of the evidence is not substantially outweighed by its prejudicial effect. Reynolds, 429 Mass. at 395; Commonwealth v. Leonard, 428 Mass. 782, 786 (1999); Commonwealth v. Ferguson, 425 Mass. 349, 354 (1997); Fordham, 417 Mass. at 22; Otsuki, 411 Mass. at 236; Commonwealth v. Chalifoux, 362 Mass. 811, 816 (1973).
Even if such evidence is deemed relevant for some other purpose, the party seeking to admit the evidence must meet the standard set forth in Commonwealth v. Leonard, 428 Mass. 782, 785-786 (1999).
In the case now before the Court, the Commonwealth seeks to present extrinsic evidence in its direct case of the defendant's alleged misconduct in the cases of Darosa, Alonso, Delduca, and Williamson. From this, the Commonwealth intends to argue that Ellis's actions in the Formoso case were part of a larger scheme to defraud insurance companies, followed a general pattern of conduct, and were not the result of accident or mistake. At bottom, however, the evidence of extrinsic acts done in the course of the defendant's relationship with four other clients does nothing other than establish propensity. Furthermore, not only would this evidence, if admitted, improperly force Ellis to answer accusations not raised in the indictments, see Clifford, 374 Mass. at 298, but it would also bear on the defendant's character, raising the danger of unfair prejudice. See Commonwealth v. Ferguson, 425 Mass. 349, 355 n. 6 (1997). Finally, even if the Commonwealth could establish that the evidence is admissible as evidence of common course of conduct or scheme, this Court could not foresee any limiting instruction that would enable the jurors on this case to perform the "mental gymnastic" required to view the bad act evidence only as pattern or scheme, and not as impermissible character evidence. See Scott, 408 Mass. at 836 (O'Connor, J., dissenting), quoting Nash v. United States, 54 F.2d 1006, 1007 (2d Cir.), cert. denied, 285 U.S. 566 (1932).
This Court does not decide here that the Commonwealth has established that the evidence shows common pattern or scheme.
Because this Court believes that the prejudicial effect of the extrinsic evidence outweighs its probative value and that there is no limiting instruction that would reasonably prevent unfair prejudice to the defendant, the Commonwealth will be precluded from presenting such evidence in its case-in-chief. Consistent with Massachusetts law, however, if the defendant offers testimony of his good character, the Commonwealth may offer rebuttal evidence of the defendant's bad character, including his conduct with Darosa, Alonso, Delduca, and Williamson. See, e.g., Commonwealth v. Maddocks, 207 Mass. 152, 157 (1910); Commonwealth v. Salone, 26 Mass. App. Ct. 926, 928 (1988); Proposed Mass. R. Evid. 404(a)(1). The admissibility of that evidence, however, must be made in the context of the trial.
B. THE PROPOSED USE OF EXTRINSIC EVIDENCE TO IMPEACH
The Commonwealth argues, in the alternative, that once it presents evidence of Ellis's admissions made at the DIA conference, at his deposition, and at the civil trial, the Commonwealth is entitled as part of its case-in-chief to present the extrinsic evidence of his conduct in the Darosa, Alonso, Delduca, and Williamson matters to impeach the defendant's explanation of those admissions; however, that is not the law.
The general rule is that once a witness testifies, the opposing party may seek to discredit that witness by impeaching him on cross-examination. Courts, however, have set limitations on the type of evidence that may properly be used for impeachment purposes. For example, specific acts of misconduct showing a witness to be untruthful, but which did not result in a criminal conviction, may not be used to impeach a witness. See, e.g., Commonwealth v. Andrews, 403 Mass. 441, 459 (1988); Commonwealth v. Hightower, 400 Mass. 267, 271 (1987); Commonwealth v. Cheek, 374 Mass. 613, 615 (1978). Similarly, a witness may not be impeached by showing that he has testified falsely in a collateral proceeding. See, e.g., Commonwealth v. Frey, 390 Mass. 245, 249 (1983).
In this case, the Commonwealth seeks to impeach the defendant before he testifies at trial. Specifically, the Commonwealth seeks to introduce the defendant's statements from collateral proceedings and then present extrinsic evidence to show he testified falsely at that proceeding. Use of this type of impeachment evidence is clearly impermissible. See Frey, 390 Mass. at 249.
The facts here are distinguishable from Commonwealth v. Magraw, 426 Mass. 589, 598 (1998); Commonwealth v. Borodine, 371 Mass. 1, 7 (1976); and Commonwealth v. Maimoni, 41 Mass. App. Ct. 321, 327 (1996). In those cases, evidence of other acts was admitted to rebut exculpatory statements made by the defendant to police during the investigation of the indictments at issue in the trial. Here, such exculpatory statements were made in connection with the indictments at issue in this case. The Commonwealth will thus be precluded from presenting the defendant's conduct in the cases involving Darosa, Alonso, Delduca, and Williamson in its case-in-chief to impeach prior statements of the defendant which the Commonwealth also intends to present as part of its case-in-chief.
The limitation on impeachment evidence may not apply if a witness opens the subject on direct. See, e.g., Commonwealth v. Perez, 390 Mass. 308, 316-319 (1983); Commonwealth v. Key, 381 Mass. 19, 28-29 (1980). In such a case, the impeachment evidence may be admissible as rebuttal evidence. Maddocks, 207 Mass. at 157; Salone, 26 Mass. App. Ct. at 928; Proposed Mass. R. Evid. 404(a)(1). The propriety of such examination must be answered in the context of the trial.
Because the evidence of Ellis's alleged misconduct in the cases of Nelson Omar Darosa, Maria Alonso, Luis Alberton Delduca, and Federico Williamson raises the danger of unfair prejudice to the defendant and is improper impeachment evidence, the Commonwealth will be precluded from presenting such evidence in its case-in-chief.
ORDER
For the foregoing reasons, defendant James N. Ellis Jr.'s motion to exclude extrinsic evidence is hereby ALLOWED, with the understanding that the extrinsic evidence at issue may be used by the Commonwealth on rebuttal, if appropriate.
_____________________________ Robert H. Bohn Jr. Justice of the Superior Court
DATED: August, 1999