Opinion
No. 10–P–2214.
2012-08-6
COMMONWEALTH v. John SHELZI.
By the Court (RAPOZA, C.J., MILLS & GRAHAM, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury convicted the defendant of resisting arrest, G.L. c. 268, § 32B. He argues that the judge committed error in failing to instruct the jury on the use of prior inconsistent statements in assessing the credibility of the Commonwealth's only witness. The Commonwealth argues that the judge exercised sound discretion in denying the request and that the defendant failed to show that he was prejudiced by the judge's decision.
The Commonwealth's sole witness, Officer Fields, testified that his colleague, Officer Palmer, assisted in subduing the defendant, placing him in handcuffs, and placing him in the police cruiser. Officer Fields's official police report of the incident and arrest had not mentioned Officer Palmer. Prior to closing arguments, the defendant asked for “an instruction on prior inconsistent statements, regarding the police report, his testimony regarding Officer Palmer. There were a couple of occasions when his ... police report differed from his testimony.” The judge declined the request and delivered a standard instruction as to witness credibility.
The defendant's attorney argued in his closing that Officer Fields's testimony regarding Officer Palmer's participation in the arrest should be viewed by the jury as a fabrication by Officer Fields, after the fact, to bolster the Commonwealth's case.
The defendant did not object to the instruction as given. Nevertheless, we consider the issue properly preserved. See Commonwealth v. Prater, 431 Mass. 86, 97 (2000).
We are persuaded that the failure of Officer Fields to mention Officer Palmer in the earlier statement, an official police report, is inconsistent with Officer Fields's trial testimony (mentioning Officer Palmer's assistance in subduing the defendant) because it “would have been natural to include [that] fact in the initial [incident report on which the charge of resisting arrest was based].” Commonwealth v. Ortiz, 39 Mass.App.Ct. 70, 72 (1995), citing Foster v. Worthing, 146 Mass. 607, 608 (1888). See Commonwealth v. West, 312 Mass. 438, 440 (1942). We are unpersuaded by the Commonwealth's argument that Commonwealth v. Ortiz does not support the defendant's argument, and we conclude that Officer Fields's testimony about Officer Palmer's assistance in subduing the defendant bolsters Officer Fields's testimony that the defendant was noncompliant and resisted arrest. We do not consider Officer Palmer's presence and assistance an instance of mere descriptive details that were “not directed to major points” of the offense charged, as the Commonwealth argues.
It is well established that “[t]he failure to give a requested instruction on the use of prior inconsistent statements in assessing the credibility of a witness is error if there is evidence that a witness made prior inconsistent statements.” Commonwealth v. Kessler, 442 Mass. 770, 778 (2004), quoting from Commonwealth v. Ortiz, 39 Mass.App.Ct. at 71, citing Commonwealth v. Martin, 19 Mass.App.Ct. 117, 119–120 (1984).
Because the issue is preserved (see note 1, supra ), our review is under the prejudicial error standard. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting from Commonwealth v. Peruzzi, 15 Mass.App.Ct. 437, 445 (1983) (“An error is nonprejudicial only ‘[i]f ... the conviction is sure that the error did not influence the jury, or had but very slight effect ...’ ”).
The evidentiary effect of inconsistent testimony is not limited to its use for substantive purposes, wherein jurors may believe one witness over another or one witness's account over that same witness's different account. In addition, jurors are free to use the very fact that a witness has given differing accounts as a basis to draw inferences about credibility, irrespective of which (if either) version they may think plausible, in whole or in part. The separate jury instruction on the credibility implications of inconsistent testimony is provided for this reason. See, e.g., the Model Jury Instructions for Use in the District Court, Instruction 3 .700, Impeachment by Prior Inconsistent Statement (2009) (emphases omitted):
“When you evaluate how reliable a witness's testimony is, you may take into account whether that witness made an earlier statement that differs in any significant way from his present testimony at trial. It is for you to say how significant any difference is. The earlier statement is not itself positive evidence of any fact that is mentioned in it.
“To repeat, if a witness's earlier statement is not consistent with that witness's present testimony, you may take that into account when you determine how much belief to give that witness's present testimony from the witness stand. The prior statement is relevant only as to the witness's credibility....”
Upon review, we find the cases urged in the Commonwealth's brief either not helpful to the Commonwealth or distinguishable on their facts from the case at hand. Commonwealth v. Anderson, 396 Mass. 306, 315 (1985), is principally but not only distinguishable on the basis that the court applied the substantial risk standard. Commonwealth v. Bruce, 61 Mass.App.Ct. 474 (2004), is distinguishable because in that case the court in fact had instructed on prior inconsistent testimony. Id. at 483–485.
Commonwealth v. Martin, 19 Mass.App.Ct. at 120, cited by the Commonwealth, would be persuasive but for the fact that it is distinguishable. There, the court found no prejudicial error in the failure to instruct on prior inconsistent testimony where, as here, the judge gave a standard instruction on determining credibility, and defense counsel made a forceful closing argument stressing the issue. The court concluded that the judge's instructions “served to focus the jury, in light of the testimony and final arguments of counsel, upon the credibility of [the witness's] trial testimony as the central issue.” Ibid. In Martin, however, the prosecution's witness was a disinterested innocent bystander, rather than a disputant or party to the conflict; thus, the jury could not reasonably infer that his inconsistencies stemmed from any desire to vindicate his own interest. The Martin court acknowledged as much when it took note of the prosecution's closing argument, in which the prosecutor appealed to the jury to remember that the witness had simply done his duty as a citizen, without any ulterior motive or purpose, stating: “[W]hy wouldn't he tell you the truth? He doesn't even know the defendant.” Id. at 119. Officer Fields, by contrast, was very much a direct disputant in the conflict, forcing jurors to decide between the Commonwealth's version of events and the defendant's version on nothing other than the testimony of the two men. Credibility was not merely essential to the issue—it was the issue itself.
In the particular factual circumstances presented in this case, we cannot state with fair assurance that the error did not influence the jury, or that it would have had at most a very minor effect on the jury's decision. The presence and active assistance of Officer Palmer in the arrest, handcuffing, and custodial removal of the defendant were materially and naturally related to the charge of resisting arrest. Therefore, the inconsistency created by Officer Fields's omission of these facts in prior testimony (the official police report) could reasonably raise a question in the mind of a rational juror as to Officer Fields's credibility. His credibility in turn was the very essence of the issue at stake, because jurors ultimately had to decide which man to believe.
Judgment reversed.
Verdict set aside.