Opinion
BOARD No. 97802-88
Filed: December 18, 1995
REVIEWING BOARD DECISION
(Judges Fischel, McCarthy, Wilson)
APPEARANCES
George F. Morrissey, Esq., for the employee
David W. Perry, Esq., for the insurer
The employee appeals from a termination of weekly benefits pursuant to § 35 of the Act, claiming that the administrative judge acted arbitrarily, capriciously and contrary to law when she admitted into evidence information regarding the criminal record of the employee. We hold that the information was admitted into evidence incorrectly. Because we cannot determine that the error in admission was harmless error, we remand the decision to the administrative judge to reconsider in writing a new decision.
In March 1988, the employee began working for the employer picking up and delivering freight weighing from 8 ounces to over 100 pounds. (Dec. 4). On December 28, 1988, while at work, the employee stepped off an elevator that had failed to stop at a landing and he fell two and a half feet, landing on his back. (Dec. 4). The insurer accepted liability and began paying benefits under § 34 of the Act. (Dec. 3). As a result of the injury, the employee had a herniated disc surgically removed from his back in January 1990. (Dec. 4). Since then, the employee claimed to have been in constant, debilitating pain that rendered him unable to work. (Dec. 4).
The judge adopted the opinion of Dr. Joseph Dorsey, a neurosurgeon and neurologist that the employee's work injury caused ruptured invertebral disc, and post surgery disc syndromes." (Dec. 4, 6). She adopted the opinion of Dr. Dorsey that the employee was disabled from heavy work as a result of the injury, but that the employee had been capable of sedentary work, including driving a van, since October 19, 1991. He felt that the employee should be able to lift between fifteen and twenty pounds. (Dec. 5). In her decision, the judge assigned the employee an earning capacity equal to his average weekly wage, and allowed the discontinuance of benefits under §§ 34, 35.
In this appeal the employee argues prejudicial error in allowing the insurer at hearing to cross examine the employee as to a prior conviction for a crime. The administrative judge stated that the insurer's line of questioning regarding his prior convictions "goes to the credibility". (Tr. 37, 38). The employee argues that it was error to admit this evidence because the crime of which the employee was convicted does not reflect on the employee's credibility or reputation for truthfulness, as do crimes of perjury, larceny and fraud.
When the insurer began to question the employee concerning his prior conviction, the employee asked the judge if he could speak to his attorney. The administrative judge declined the employee's request to confer with counsel and required him to answer the insurer's questions. (Tr. 38). We believe it appropriate to allow an individual to confer with counsel under such circumstances.
According to his testimony, the conviction at issue was for trafficking in marijuana near a school ground, a felony. (Tr. 40).
The Legislature has determined that a broad range of prior convictions are probative of a witness' credibility. Commonwealth v. Walker, 401 Mass. 338, 346 (1987). Under G.L.c. 233, § 21, a conviction of a witness may be shown to impeach his credibility with several exceptions. A conviction may be admissible for purposes of credibility even though the underlying crime does not reflect directly on the defendant's truth telling abilities. P.J. Liacos, Massachusetts Evidence, § 6.9.2 at 303 (6th ed. 1994), citing Commonwealth v. Kowalski, 33 Mass. App. Ct. 49, 50 (1992). A judge may infer a readiness to lie from the witness' prior involvement in criminal activity. Liacos, supra, at 303; and see Commonwealth v. Fano, 400 Mass. 296, 302-303 (1987).
General Laws c. 233, § 21 provides, in pertinent part:
The conviction of a witness of a crime may be shown to affect his credibility, except as follows:
First, the record of his conviction of a misdemeanor shall not be shown for such purpose after five years from the date on which sentence on said conviction was imposed, unless he has subsequently been convicted of a crime within five years.
Second, the record of his conviction of a felony upon which no sentence was imposed or a sentence was imposed and the execution thereof suspended, or upon which a fine only was imposed, or a sentence to a reformatory prison, jail, or house of correction, shall not be shown for such purpose after ten years from the date of conviction, if no sentence was imposed, or from the date on which sentence on said conviction was imposed, whether the execution thereof was suspended or not, unless he has subsequently been convicted of a crime within ten years of the time of his testifying. For the purpose of this paragraph, a plea of guilty or a finding or verdict of guilty shall constitute a conviction within the meaning of this section.
Third, the record of his conviction of a felony upon which a state prison sentence was imposed shall not be shown for such purpose after ten years from the date of expiration of the minimum term of imprisonment imposed by the court, unless he has subsequently been convicted of a crime within ten years of the time of his testifying.
Fourth, the record of his conviction for a traffic violation upon which a fine only was imposed shall not be shown for such purpose unless he has been convicted of another crime or crimes within five years of the time of his testifying.
For purposes of this section, any period during which the defendant was a fugitive from justice shall be excluded in determining time limitations under the provisions of this section. Amended by St. 1950, c. 426; St. 1974, c. 502; St. 1982, c. 87
General Laws c. 233, § 21 prescribes time limits after which convictions cannot be used to impeach a witness. Misdemeanor convictions cannot be used after five years, and felony convictions may not be used after ten years.
This method of impeachment by prior conviction requires that evidence as to such conviction be admitted only by a certified copy of the criminal conviction. Commonwealth v. Dominico, 1 Mass. App. Ct. 693, 713 (1974); Commonwealth v. Atkins, 386 Mass. 593, 600 (1982). Here the information came into the record only through the testimony of the employee on cross-examination. Such conviction must be shown by the record, not by oral evidence. Commonwealth v. Bishop, 296 Mass. 459, 462 (1937). Since the evidence of the witness's conviction was not proved by the court record or a certified copy of the record, and thus did not comply with the requisites of G.L.c. 233, § 21, the admission of the evidence was error.
The question arises whether an error in the admission of evidence is harmless. A decision in a worker's compensation case will not be reversed for error in the admission of exclusion of evidence unless substantial justice requires reversal. Indrisano's Case, 307 Mass. 520 (1940). Error may be harmless if the probative value of the conviction for purposes of impeachment is not outweighed by unfair prejudice. Commonwealth v. Maguire, 392 Mass. 466, 467 (1984).
A trial judge has discretion to exclude the evidence of a defendant's prior conviction, even if it falls within the requirements of G.L.c. 233, § 21, where the danger of unfair prejudice outweighs the probative value of the prior conviction for purposes of impeachment. Liacos, supra, at 308, citing Commonwealth v. Maguire, 392 Mass. 466, 467 (1984) ("The admission of evidence of a prior conviction, 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.") The employee here claims prejudicial error in this regard. (Employee's Brief 1-4).
In writing her decision in this matter, the judge made no reference to the testimony regarding the criminal conviction and we have no idea as to whether she decided that the probative value of the prior conviction outweighed any prejudicial effect to the witness. She does not say, one way or another, how this information may have affected her view of the employee's credibility as to his ongoing incapacity. We cannot tell how the improperly admitted evidence may have impacted on the fact finder's view of the credibility of the employee's claims of "constant, debilitating pain that rendered him unable to work." (Dec. 4).
Accordingly, we vacate the decision and return this matter to the administrative judge to clarify what effect, if any, the improperly admitted evidence played in her determination. A new decision should be issued, in which the testimony elicited as to criminal activity is specifically excluded from consideration by the fact finder. We note that the judge's prior decision was supported by the medical evidence she adopted, and it may well be that the fact finder would again reach the same result in this matter. We require only clarification that the improperly admitted testimony played no role in that determination.
So ordered.
__________________________ Carolynn N. Fischel Administrative Law Judge
__________________________ William A. McCarthy Administrative Law Judge
__________________________ Sara Holmes Wilson Administrative Law Judge
Filed: December 18, 1995